James Baxter et al }
VS }
Samuel Shumard et al }
Be it remembered that heretofore to wit on the fifth
day of March in the year of our Lord one thousand eight hundred &
thirty eight James Baxter & others by Williams & Johnson, Esquires their
Solicitors filed in said Court their petition in the words & of the tenor following
to wit: "To the Hon the Judges of the Common pleas Court in & for the
County of Warren & State of Ohio. Your petitioners James Baxter & Mary
his wife Josephus Dodds and Matilda his wife, Henry Jackson Lefevere [sic]
Massa Lefevre, Sarah Lefevre, Jacob Lefevere [sic] & Nimrod Lefevre, the last
two of whom are minors & appear by James Baxter their next friend
all of Warren County Ohio an [sic] Elias Lefevre of Shelby County Ohio; Gil=
bert Barton & Catherine his wife of Hamilton County Ohio; & Thomas
Moore & Rebecca his wife of Butler County, Ohio respectfully shew unto
your honors that that [sic] they are the Children & heirs and Sons in law
of the late Jacob Lefevre who departed this life intestate sometime in
the year eighteen hundred & thirty three, seized & pofsessed of the follow=
ing real estate all situate in the County of Warren aforesaid, thus descri=
bed to wit:-- All that certain tract of land being a part of the third section
in the fourth Township & second entire Range in the Miami purchase.
Beginning at the South East corner of a certain tract or parcel of land devi=
sed by Roland Kindle decd. to his wife Anna Kindle during her life in
the same section aforesaid, thence running S 40 poles, thence W 80 poles
thence N 40 poles thence E 80 poles to the place of beginning, Containing twenty
acres. Also a certain lot of land, being part of section numbered four in the
third Township, second entire Range, bounded as follows to wit: Beginning
at the SW corner of a forty acre lot of land formerly belonging to Roland
Kindle decd. also SE corner of a forty acre lot sold to Zebulon Eynon
thence with his line W 89 poles to a line of Nimrod Duvall's thence with
his line 16 poles to the SE corner of said Duvall's land standing in the
South bounded line of said section, thence with the same line N 84 [degrees] E
89 poles thence N 8 poles to the place of beginning Containing about
seven acres more or lefs. Also the following tract of land situate between
the Great & Little Miami Rivers; Being part of section number three, in the
third Township and second entire Range Beginning at the N.W corner
of a forty acre lot purchased off of said section by Roland Kindle deceased
and running from thence with the section line W 80 poles to a corner of
land conveyed to Ralph Stout thence with his line S 80 poles, thence East
to the S W corner of the aforesaid lot, thence with his line N 80 poles to
the place of beginning Containing Forty acres Strict measure. Also
the following tract of land viz Beginning at a stake standing 80 perches
south of the N E corner of section three township three of second entire Range
between the Miami Rivers, and running thence S. 84 [degrees] 15' W 162 perches,
thence S 80 perches, thence N 84 [deg.] 15' E 162 perches to the North and South
line of the East side of said section thence with said line N 80 perches
to the place of beginning; containing eighty acres of land. And also all that
tract of land Containing forty five acres more or lefs; Being that part of the
South East quarter of section No. 3 Township 3 & Range 2 between the Miami
Rivers & bounded as follows to wit: Beginning at a stake 80 perches North
of the SE corner of section three thence 80 [deg.] 43' W thence 80 poles to the
SW corner of land owned or lately owned by the heirs of Wm Middleton
deceased, thence N 90 perches to the South boundary line of the said Jacob
Lefevre land thence W 84 [deg.] E 80 perches to the East boundary line of said
sent that the before described parcel of land lay in one body and altogether
contains about two hundred acres, & they pray that the whole thereof may
be surveyed & the description & quantity returned as one tract_ that on
the death of the said Jacob Lefevre said real estate descended in Coparcenary
to your petitioners subject to the Dower of his late widow therein, that is
to say, Mary Shumard late Mary Lefevre, now the wife of Samuel Shu=
mard, both living in Warren County aforesaid & both of whom your petition=
ers pray may be made Defendants to this petition & that they may an=
swer the same under oath. The premises Considered your petitioners pray
that partition may be made of the real estate aforesaid; First afsigning
to Mary Shumard & her husband her reasonable dower therein & then
setting off in severalty to each of your petitioners his & her, & their share in
said premises including the reversion of the dower incumbrance afore=
said; And that such other & further proceedings may be had in the
matter as shall be deemed right & proper-- & your petitioners will
ever pray &c. James Baxter, Mary Baxter Josephus Dodds Matilda
Dodds Elias Lefevre Gilbert Barton Catherine Barton Henry J Lefevre
Thomas Moore Rebecca Moore Mafsa Lefevre, Sarah Lefevre & Jacob Lefevre
Nimrod Lefevre By James Baxter their next friend. J. Milton Wil=
liams Sol for Complts." And afterwards to wit at a Court of Common pleas
begun & held at Lebanon in the County of Warren and State of Ohio on the
third monday of April being the sixteenth day of the same month in the
year of our Lord one thousand eight hundred and thirty eight Come into
Court here the said petitioners by their Solicitor aforesaid and the said
defendants also appear in Court here by Rofs & Conover [?] Esquires their So-
licitors and thereupon the Court order their Interlocutary decree to be
entered in the premises in the words & of the tenor following to wit "Be it
remembered that at the present term of this Court this cause came on
for hearing on the petition filed; & thereupon it appearing to the Court
here that the Defendants by their Solicitors Rofs & Conover [?], come into Court here
& acknowledge legal service of notice of the pendency & prayer of said
petition - And the Court being also satisfied that partition should be
made, according to the demand of said petition of the premises therein
described: The Court do, therefore order adjudge & decree that the Sheriff
of Warren County, on receiving an order for that purpose, shall forthwith
by the oaths of Jeremiah Morrow, John Lowes & Abraham Phillips, three
judicious & disinterested freeholders of his County, cause dower to be set
off & afsigned in said premises unto Mary Shumard, and that the
residue thereof & including the reversionary interest in said dower
incumbrance, be divided amongst Said Demandments as follows to wit
To James Baxter & Mary his wife one tenth- to Joseph Dodds & Matilda
his wife one tenth part- to Elias Lefevre one tenth- to Gilbert Barton & Cath
arine his wife one tenth to Henry J Lefevre one tenth to Thomas Moore
& Rebecca his wife one tenth to Massa Lefevre one tenth to Jacob Lefevre one
tenth And that in setting off Dower & making division as aforesaid
said Freeholders are to take into Consideration as well the quality &
quantity of said land, as the improvements But if said dower cannot be
assigned in kind in & division made of said premises as afore
said, then said dower shall be afsigned in a special manner ac=
cording to law & the premises appraised subject thereto the true value
thereof returned to this Court. And the Court order said Sheriff to re=
turn his proceedings herein to the present term of this Court." And
thereupon a writ of partition issued in the premises in the words &
Rufsell Esquire Sheriff of our said County Greeting: On the petition of
James Baxter et al filed in the Court of Common pleas for said County against
Samuel Shumard and others wherein partition is prayed of the following
real estate the property of the heirs of Jacob Lefevre deceased: all situate in
the County of Warren aforesaid thus described to wit: "All that certain
tract of land being a part of the third section in the fourth Township and
Second entire Range in the Miami purchase: Beginning at the South East
corner of a certain tract or parcel of land devised by Roland Kindle decd. to
his wife Anna Kindle during her life, in the same section aforesaid
thence running S 40 poles, thence W 80 poles thence N 40 poles thence E
80 poles to the place of beginning Containing twenty acres. Also a certain
lot of land being part of section numbered four in the third Town=
ship, second entire Range, bounded as follows to wit: Beginning at the
SW corner of a forty acre lot of land formerly belonging to Roland Kindle
decd. also SE corner of a fifty acre lot Sold to Zebulon Eynon, thence
with his said line W 89 poles to a line of Nimrod Duvals [sic], thence with
his line 16 poles to the SE corner of said Duvalls land standing in the
South bounded line of said section thence with the same line N 84 [deg.] E
89 poles thence N 8 poles to the place of beginning, containing seven
acres more or lefs. Also the following tract of land situate between
the Great & Little Miami Rivers, being part of section number three
in the third Township and second entire Range Beginning at the NW
corner of a forty acre lot purchased off the said section by Roland Kindle
decd. & running from thence with the section line W 80 poles to a corner
of land Conveyed to Ralph Stout thence with his line South 80 poles, thence
East to the SW corner of the aforesaid lot, thence with his line N 80 poles
to the place of beginning Containing forty acres Strict measure. Also the following
tract of land viz Beginning at a stake standing 80 perches South of the North
East corner of section three of Township three & second entire range between the
Miami Rivers & running thence S 84 [deg.] 15' W 162 perches, thence S 80 perches thence
W 84 [deg.] 15' E 162 perches to the North & South line on the East side of said section
thence with said line N 80 perches to the place of beginning Containing
eighty acres of land And also all that tract of land Containing forty five acres
more or lefs Being that part of the South East quarter of Section No. 3 Town=
ship 3 & Range 2 between the Miami Rivers and bounded as follows to wit: Be=
ginning at a stake 80 perches North of the SE corner of section three thence
80 [deg.] 43' W thence 80 poles to the SW corner of land owned or lately owned by
the heirs of Wm.. Middleton decd. thence N 90 perches to the South boundary
line of the Said Jacob Lefevres land thence W 84 E 80 perches to the East boun=
dary line of said Section South 90 perches to the beginning": Said Court has
decreed in Substance, that you shall forthwith by the oaths of Jeremiah Mor=
row, John Lowes & Abraham Phillips, three Judicious & disinterested freehol=
ders of this County cause dower to be set off & assigned in said premises
unto Mary Shumard & that the residue thereof & including the reversionary
interest in said dower incumbrance, be divided as follows to wit: To James
Baxter & Mary his wife one tenth to Joseph Dodds & Matilda his wife one
tenth To Elias Lefevre one tenth To Gilbert Barton & Catharine his wife one
tenth To Henry J Lefevre one tenth To Thomas Moore & Rebecca his wife one
tenth To Mafsa Lefevre one tenth To Sarah Lefevre one tenth_ to Jacob
Lefevre one tenth & to Nimrod Lefevre one tenth & that in setting off Dower
& making division as aforesaid Said freeholders are to take into Consideration
as well the quality & quantity of Said land as the improvements thereon But
if Said dower cannot be afsigned in kind in & division made of Said
ner according to law & the premises appraised subject thereto & the true value
thereof returned to this Court." You are therefore hereby Commanded to carry
said order of Court into execution & of your proceedings hereon make return
to our Said Court forthwith & have then there this writ: Witnefs my hand
& the Seal of Said Court at Lebanon this 21st April AD 1838 J K Wilds Clk"
And thereupon the Said Sheriff to wit William Rufsell Esquire to whom
the foregoing writ was in form aforesaid directed makes return thereof to the
Court here in the words & of the tenor following to wit: "The State of Ohio
Warren County Ss On this 25th day of April AD 1838 personally appeared
before me an acting Justice of the peace for Said County Jeremiah Mor=
row, John Lowes & Abraham Phillips who were duly Sworn to discharge
all & Singular the duties to be performed by the within order. Given under
my hand & Seal this 25th day of April AD 1838 James Baxter J P {Seal}
Pursuant to the order of Court at their present term directing the assign=
ment of dower & the partition and valuation to be made of the lands late
the property of Jacob Lefevre decd. The undersigned met on the premises &
having been Sworn proceeded to make a Survey of the out boundary lines (a
plat of which is annexed) and on a view of the lands to make an estimate
of its value. They have determined the value of the whole tract with the
improvements to be $4575. The one third of which rightfully claim to
be held for Dower is $1525 To that amount they have assigned real
property as follows Beginning on the East boundary of the tract, being
a North South line thence South Seventy nine poles and one half to the
South East Corner of the tract thence S 84 [deg.] W 80 poles thence North 81
poles thence S 84 [deg.] W 81 poles thence W 39 poles thence N 84 [deg.] E 161 poles
to the place of beginning Containing Seventy nine acres and an [sic] half
On the plat the lands South of the line drawn in black & dotted is
the part afsigned in dower. And further they are of opinion that a
partition of the lands among the ten heirs who have claim cannot
be made without a manifest injury to the value thereof. And report
their estimate of value of the whole tract with improvements to be
four thousand and five hundred & seventy five Dollars & the value of 107
acres & 48 Square poles to be $3050 which are encumbered by the claim
of Dower the value of the whole, incumbered, by dower they estimate
at $3812.50. Given under our hands this 26th day of April 1838. Jeremiah
Morrow, John Lowes Abraham Phillips"
A plat of the land late the property of Jacob Lefevre decd. the out boun=
daries are drawn in black the several parcels of which it is composed
held by separate Conveyances designated by dotted lines- and the line
for setting off the lands for dower marked with a black dotted line.
(see next page)"
[this oriented & labeled map dominates top half
of page - also see pdf file]
"The whole quantity by Survey is 187 acres & 28 Square poles
being four acres & 132
Square poles less than the quantity called for by the Conveyances
April 26th 1838 Surveyed by Jeremiah Morrow "
And thereupon the Court order their further decree to be entered in the
premises in the words & of the tenor following to wit: "Be it
remembered
that at this term this cause came on for further hearing: And thereupon
it appear=
ing to the Court here that the writ of partition ifsued in this cause
has
been duly executed, from which Said writ & proceedings of the freeholders
there=
on it appears to the Court that they have, Surveyed platted & correctly
ascer=
tained the boundaries & quantity of all the lands described in the
petition filed
in this cause, of which the following is the description to wit: Situate
in
Warren County, Ohio it being parts of sections No. 3 & 4 of Township
No. 3
& 4 in Second entire range between the Miami Rivers; Beginning in
sec=
tion No. 4 Township 3 & Range aforesaid at the South West corner of
a
forty acre lot formerly belonging to Roland Kindle now deceased &
also
S E corner of a fifty acre lot Sold to Zebulon Eynon; thence with his
line W 89 poles; thence S 16 poles, thence N 84 [deg.] E 9 poles; thence
South
160 poles, thence N 84 [deg.] E 81 poles, thence S 81 poles; thence N
84 [deg.] E 80
poles; thence North 200 poles thence S 84 [deg.] W 80 poles; thence North
48
poles to the place of beginning Containing one hundred & eighty seven
acres & twenty eight square poles: Out of which said freeholders pro=
ceded to set off Dower to Mary Shumard as follows to wit: Beginning
on the East boundary of the tract, being a North and South line, thence
South Seventy nine poles & an half to the South East corner of the
whole
tract; thence S 84 [deg.] W 80 poles thence N 81 poles; thence S 84 [deg.]
W 81 poles
thence North 39 poles; thence N 84 [deg.] E 161 poles to the place of
beginning
Containing Seventy nine acres & a half: And on the plat returned the
dower
tract is designated by lines drawn in black and dotted And that said
ided without manifest injury thereto, did, therfore appraise & value the
same at the sum of three thousand eight hundred and twelve dollars
& fifty cents: On careful examination of all which proceedings the Court
find the same, in all things, regular & Correct, I do therefore approve of
& Confirm the same. And no party interested appearing in Court here &
electing to take Said premises at the appraised value thereof: The Court
do therefore order & decree that the Sheriff of Warren County on receiv=
ing an order for that purpose Shall proceed to Sell Said premises upon
the following terms: After giving legal notice of the time & place of
Sale the Same he Shall offer the whole tract as described as aforesaid
at public auction And shall not sell the same for lefs than two thirds
the appraised value thereof; said premises are also to be sold subject
to the Dower incumbrance of Mary Shumard thereon as set off &
assigned to her as aforesaid. One third of the purchase money to
be paid in hand on the day of sale, one third in one year thereaf=
ter, & the residue in two years from the day of sale: the deferred pay=
ments to bear interest from the day of sale & to be so secured by mortgage
on the premises. And the Court order said Sheriff to return his procee=
dings herein to the next term of this Court" Whereupon further procefs
of & upon the premises aforesaid between the parties aforesaid & by order
of the Court here thereon is Continued until the first monday of August
next. And now at this day to wit the first monday of August being the
Sixth day of the same month in the year of our Lord one thousand
eight hundred & thirty eight come again into Court here the said parties
as aforesaid & thereupon the Court order their final decree to be en=
tered in the premises in the words & of the tenor following to wit:
"Be it remembered that this cause came on for final hearing at the
present term of this Court: And thereupon it appearing to the Court
that the petitioners in this cause do not wish a sale of the premises
described in the petition exhibited in this cause: Therefore the Court
difsmifs said petition without other proceedings than the setting
off & Confirming of the dower of the deft Mary Shumard, as heretofore
assigned ascertained & Confirmed under the writ of partition & for=
mer decretal order entered in this cause. And the Court order
& decree that the petitioners, in proportion to their respective inter=
ests in the premises, pay all the costs which have accrued on said
petition & the proceedings under the same & on their default so to do
that execution issue therefor." Whereupon said Defendants by their
Solicitor aforesaid give notice to the Court here that they will appeal
from said Decree to the Supreme Court.
Costs Taxed
To Complainants $25.27
To Defendants 20.10
______
$45.37
B. Hinksaw "