Proceedings, etc., in Welch v. Randolph et al.

SUMMARY

Document text, 2 March 1801

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At a High Court of Chancery holden at the Capitol in the City of Richmond the second day of March in the year of our Lord, one thousand eight hundred and one, and in the twenty fifth year of the Commonwealth Before the Honorable George Wythe Judge of the said Court

Be it remembered, that herefore, to wit, at a High Court of Chancery holden at the Capitol aforesaid the tenth day of September in the year of our Lord, one thousand seven hundred and ninety four, Wakelyn Welch surviving partner of Robert Cary and Company, late of the City of London, Merchants, then and there exhibited to the said Court their bill of complaint against Thomas M. Randolph and William Randolph executors of Thomas M Randolph deceased, and John Randolph an infant son and devisee of the said Thomas M Randolph, deceased, and Richard Randolph of Curles, eldest son and residuary devisee of Richard Randolph deceased, which bill and an amended bill herewith filed are in the words following, to wit,

To

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[Bill.] "To the Hon^ble George Wythe Esq^r. Judge of the High Court of Chancery. Humbly complaining sheweth unto your Honor your Orator Wakelyn Welch surviving partner of Robert Cary and Company late of the Cit of London Merchants that Thomas Mann Randolph Esq^r. late of the county of Goochland being justly indebted to your Orator in the sum of £2232. 12.9 sterling by Bond dated on the 20^th June 1768 with legal Interest thereon from the 22^d day of Aug^t. 1766 till payment did in order to secure the said principal sum with interest on the 23^d day of June 1793 execute a Deed of Mortgage conveying to your Orator a Tract of Land adjoining the Lands at William Randolph son of the said Thomas Mann, and the other Lands of the said Thomas Mann it being the same Tract which he had purchased of the late Col. Richard Randolph, and containing by Estimation 1500 acres together with the following slaves to wit, old Patrick old Letty Essex a fellow, little Joe a fellow Dover Joe a fellow Kned a fellow, Isaac a fellow, Patrick a lad, Billy a lad young Patrick Charles a boy son of Phillis, Joe a boy son of Phillis, Abraham a fellow, Robin a fellow Peter a fellow, Bob a boy son of Phillis, Myrtilla a woman Nancy a woman her daughter Edy & two more children Nelly a woman, her son & daughter Amey a woman her son & two daughters, Rachael a woman Sally a girl, Edy a young woman, all

which

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which slaves were then on the said land as was set forth by the said Tom Randolph in the said Deed together with all the future increase of the said female slaves the said conveyance however to become void on payment of the said principal sum with Interest thereon as aforesaid 'till payment as will more fully appear reference being had to the said original Deed of Mortgage which has been duly proved and recorded in the General Court and which is hereto annexed that there was due on the said Bond the sum of £2041. Stg on the 22^d August 1775 as will appear by the Acco^t hereto annexed and your Orator further sheweth unto your Honor that though the said Thomas M Randolph had purchased paid for and been many years in full possession of the said Tract yet that the said Richard Randolph aforesaid had not at the time of his death executed a legal conveyance therefore and that his title hath descended and come to Richard Randolph Esq^r of Curles his heir at law and residuary Devisee. This circumstance however your Orator supposes was thought to be of no Importance by the said Tho. M Randolph as it was well understood between him and Benjamin Waller Esq^r the agent of your Orator that a failure to pay the debt aforesaid should give him no absolute Right to the mortgaged property but that it should be considered only as a pledge for the payment of the debt due your orator. He further sheweth your Honor that the said Thomas M Randolph of the 5^th day of Nov^r. 93

made

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made and duly published his last Will & Testament whereby he devised the said mortgaged Land to his son John Randolph and his Heirs for ever having in the first place directed that the debts due him any real Estate he might dispossessed of not thereby devised and so much of his personal Estate as should be necessary for that purpose shall be applied to the discharge of the mortgages on his Dover Estate and the said mortgaged Tract which is called in the said Will and generally known by the name of the middle Quarter Plantation as will more at large appear reference being had to a true copy of the said Will which is hereto annexed and which your Orator prays may be taken as a part of this his Bill. That there is no Incumbrance or mortgage on the said land except the mortgage executed to your Orator. That Thomas M Randolph and William Randolph sons of the S^d Tho.^s Mann and Exors named in the said Will have taken on themselves the Burden of the execution thereof and that before the suing out the Writ of Subpoena in this cause they had full notice of the mortgage aforesaid. That your Orator has not received payment of any part of this Debt. In tender consideration whereof and for as much as your Orator is only relievable in Equity. To the End therefore that the said Tho. M. Randolph and William Randolph Exors of Tho^s M Randolph dec^d. John Randolph his son & devisee and Richard

Randolph

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Randolph of Curles eldest son & residuary Devisee of Richard Randolph Esq.^r dec.^d who he prays may be made Def.^ts to this his Bill may on their corporal oaths make full true and perfect answer to all and singular the premises and that as fully as if the same were herein again set forth and interrogated that unless the Debt due your Orator with Interest & costs shall be discharged within a reasonable time the S.^d Mortgaged Lands and slaves may be sold by order of this Hon.^ble court for ready money, the said Richard Randolph be compelled to join in a conveyance and the purchase money applied to the discharge of your Orator's demand and that he may have such other relief as is consistent with Equity. May it please your Honor to grant a writ or writs of Spa commanding the said Tho. M Randolph & W Randolph Exors of Tho. M. Randolph, John Randolph & Richard Randolph &.^c

And your Orator &.^c

Welch &.^c v

Amendmen.^t to Bill

Randlph &.^c ad

And your Orator begs leave to state by way of Amendment to his Bill that the said Richard Randolph did by his Deed of Bargain and sale convey all his Interest in the Land aforesaid called Middle plantation to the said Thomas Mann Randolph. That the said Deed was executed proved & recorded in the county court of Henrico in the year 1778 and was destroyed with the Records of the said County by the British Army during the late War. Your Orator saith with that the said 1500 acres

were

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were not wholly conveyed by the said Rich^d Randolph but that a part of the Land conveyed by him was afterward and before the date of the mortgage aforesaid conveyed by the said Thomas M Randolph to W.^m Randolph his son together with an adjoining Tract called Pandemonium and that before the time of the said mortgage and at that Time the Tract held by the said Thomas M Randolph as one entire Tract called and known by the middle plantation contained besides the residue of the Land purchased of Richard Randolph and not conveyed as aforesaid to the said W.^m Randolph his son other Lands thereto adjoining which had been thereto annexed by him bounded by Tuckahoe Creek on the West and the lands of W.^m Randolph on the East and that the same included all the Land on the East side of Tuckahoe Creek which was held by the said Tho. M Randolph and your Orator charges that by the said conveyance all the Land which formed the Tract then occupied and held as one plantation and called the middle plantation passed and was conveyed the whole thereof being supposed not to contain more than fifteen hundred acres." Whereupon [award of process] process of subpoena was awarded the plantiffs ag'st the said defendents. And at a court holden at the capitol aforesaid, the seventh day of October, in the year of our Lord on thousand seven hundred and ninety four, on the motion of the plaintiff by his counsil, [guardian ass^d the inf.^t] Thomas Mann Randolph was assigned guardian to John Randolph to defend him in this suit. And the process of subpoena awarded in this cause being returned executed on the defendents Thomas M

Randolph

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Randolph and William Randolph and Richard Randolph and they failing to appear and answer [award of attachments] attachments for such their contempt, were awarded against them. And at a Court holden at the Capitol aforesaid the twelfth day of March in the year of our Lord one thousand seven hundred and ninety six, [Nisi decree] the defendents Thomas M Randolph, William Randolph and Richard Randolph upon whom attachments for their contempt in not answer the bill of the plaintiff hath been returned executed still failing to answer the same, the court, upon motion of the plaintiff by his counsil doth take his bill for confessed as to those defendents, and direct one of its commissioners to state and report an Account of the payments & discounts to which the defendents are intitled against the mortgage in the bill mentioned unless the said defendents on or before the tenth day of the team next after they shall have been saved with a copy of this order shew cause to the contrary: upon copies of which order, now filed with the papers in the cause, are the following endorsements "I acknowledge [Service of Nisi decree] service of the within decree. Will.^m Randolph, Tho. M Randolph April 12, 1796 Witness. J B Clausel" "I acknowledge service of the within this 29^th April 1796 Th M Randolph. Test Bevy.ⁿ Sheppard City of Richmond to wit, Bevy.ⁿ Sheppard maketh oath before me William Richardson a magistrate for the said City, that some time before the twenty ninth day of April last, he delivered to M^r.

Richard

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of this Country, on the motion of the plaintiff by his counsil, it is ordered that the said defendent do appear here on the first day of the next term and answer the bill of the plaintiff, and that a Copy of this order be forthwith inserted in some newspaper of the City of Richmond for two months successively and posted at the front door of the Capitol in the said City. And at a Court holden at the Capitol aforesaid the eighth day of June, in the year, One thousand seven hundred [Abatement & Sci fa to revive awarded] and ninety eight, this suit abates by the death of the plaintiff and on the motion of Wakelyn Welch by his counsil, a subpoena Scire facias to revive in his name, as executor of Wakelyn Welch deceased, is awarded returnable here &.^c. And this the cause remained on the docket of the said Court, until the fourth day of October, in the year One thousand eight hundred, when the defendents, Thomas Mann Randolph, William Randolph and John Randolph, appeared by counsil and put in the following answers: "The joint and several answer of Thomas Mann Randolph and William Randolph, executors of the last Will and testament of Thomas Mann Randolph deceased, defendants to the bill of complaint, exhibited against them and others in the high court of Chancery, by Wakelyn Welch surviving partner of Cary, Moorey and Welch, Complainant. These defendents reserving to themselves every benefit of exception to the imperfections of the said bill for answer thereto say that they cannot deny the title of the complainants to have the mortgage, in the bill mentioned, foreclosed; or that the property, which has been thereby conveyed, and has come to their hands, in the quality of assetts, be

subjected

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subjected to such decree, as the court shall think proper to make as they do not mean to redeem. And denying all combination they pray to be hence dismissed with costs: Without that that &.^c" The answer of John Randolph (son & devisee of Thomas Mann Randolph deceased) who is now of full age to the Bill of complaint in the Honorable High County of Chancery by Wakelyn Welch executor of Wakelyn Welch surviving partner of Cary, Moorey & Welch against him and others exhibited. This defendent saving to himself all benefit of exception to the said bill, saith that he cannot deny the allegations thereof to be true, and submits to such decree as to the court shall seem right in the premisses. He further saith that if the court shall think proper to decree a sale, he has for himself no objection to its talking place so soon as the mortgaged premisses, can be advertized, as he does not intend to redeem Without that that &.^c." And at a Court holden at the Capitol aforesaid the day and year last mentioned, this cause by consent of parties, came on to be heard on the bill, amended bill, answers, exhibits and report of the commissioners persuant to the order of the twelfth day of March in the ninety sixth year of the same century and was [decree for sale] argued by counsil; on consideration whereof, the court doth adjudge and decree that the defendents, their heirs and all persons claiming under the said Thomas Mann Randolph deceased, be forever barred and foreclosed of all equity and night to redeme the land described and the slaves named in the indenture of mortgage among the exhibits, made the twenty third day of june in

the

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the ninety third year, between Thomas Mann Randolph of the one part, and Wakelyn Welch only surviving partner of Robert Cary and company late merchants of the city of London, of the other part and that the Commissioners herein after named or any two or more of them, after giving three weeks previous notice in one of the Richmond news papers, do expose to public sale under by auction for ready money, the land and slaves in the said indenture described and named, and the increase of female slaves, and out of the procedes of such sale, pay unto the plaintiff, or to his agent, two thousand seven hundred and twenty three pounds six shillings and one penny farthing of current money of Virginia equal to two thousand and forty two pounds nine shillings and seven pence, sterling with interest thereupon to be computed after the rate of five per centum per annum from the thirtieth day of June, in the seventy fifth year of the foresaid Century till paid and the costs expended by the plaintiff in the prosecution of this suit, and the surplus, of the procedes if any after deducting the expences attending the sale, pay to the defendents and John Brown John Barret, John Hopkins, Thomas Rutherford and Charles Johnson are appointed Commissioners, and are required to report their proceedings in execution hereof to the count.

A Copy Teste Peter Tinsley G.G.

Plfs costs CCK & Shrfs fees $21.9

L fee and tax ___ 17.66

Com.^rs fee ___ 3.45

[Report of Sale] Pursuant to the order of the High Court of Chancery to which this is annexed hearing Date on the 4^th day of October 1800 we the subscribers after having advertised the Lands and slaves therein no auctioned proceeded to expose the same to sale on the promises on Saturday the 8^th day

of

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The Commissioners who acted under the decree of the high court of Chancery in the case of Welch vs: the Representatives of my father & others are hereby directed to pay the surplus money which arose from the sale to John Wickham Esq.^r Given under my hand 13.^th Nov.^r 1800. Teste. Will.^m Randolph. John Randolph This Indenture made this 10.^th Day of January in the year of our Lord one thousand eight hundred, between John Hopkins Thomas Rutherford and Charles Johnson commissioners appointed by the High Court of Chancery on the one part and John Wickham of the City of Richmond on the other. Whereas by a Decree made by the High Court of Chancery on the fourth day of October one thousand eight hundred in a suit between Wakelyn Welch Executor of the Last Will and Testament of Wakelyn Welch dec'ed surviving partner of Cary Moorey and Welch late Merchants and partners Plantiffs and Richard Randolph son and Heir of Richard Randolph the Elder and John Randolph son and devisee of Thomas M. Randolph dec'ed and Thomas Mann Randolph and William Randolph Executors of the last Will and Testament of the said Thomas Mann Randolph dec'ed Defendants. it was ordered that the said John Hopkins Thomas Rutherford and Charles Johnson and John Brown and John Barrett or any two or more of them should proceed to sell for ready money a Tract of Land which formerly belonged to the said Thomas Mann Randolph dec'ed and was mortgaged by him to Wakelyn Welch surviving partner of Cary Moorey and Welch known by the name of middle plantation together with sundry slaves also mortgaged as aforesaid as will more fully appear reference being had to the record of the said proceedings and Decree remaining in the said Court. And whereas in pursuance of the said Decree the same John Hopkins Thomas Rutherford and Charles Johnson after three weeks notice in the Virginia Gazette did Expose

to

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to sale the Land and slaves aforesaid on the eighth day of November in the year one thousand eight hundred at public auctions for ready money and the said John Wickham according to the Terms of Sale became the purchaser at the price of Five thousand Pounds current money of Virginia Now this Indenture witnesseth that in pursuance of the powers in us vested and for and in Consideration of the premises and for and in Consideration of the sum of five shillings to us in hand paid the receipt whereof we do hereby acknowledge we the said John Hopkins Thomas Rutherford and Charles Johnson have granted Bargained and sold and do by these presents grant Bargain and sell to the said John Wickham his Heirs and assigns forever all that Tract or parcel of Land situate lying and being in the County of Henrico known by the name of middle Quarter or plantation containing as is stated in the said Deed of Mortgage fifteen hundred acres be the same more or less the Boundaries whereof as described in a Deed of Release from John Randolph aforesaid to the said John Wickham bearing date on the twelfth day of November last past are as follows. Beginning on the lower side on the Bank of James River at a Gully on the line between the said plantation and the Tract called the lower plantation conveyed by the said Thomas Mann Randolph to his son William Randolph by Deed bearing date on the second day of December one thousand seven hundred and ninety two and Recorded in the County Court of Henrico thence with the said line North six degrees West sixty chains and a half to a Sycamore on the Bank of Tuckahoe Creek thence across the said Creek to an Elm on the opposite Bank thence North twenty four East one hundred and four chains to a White Oak on the Road from the middle Quarter to Richmond thence with the said Road ninety six chains to a White Oak thence North twenty four East seventy five chains to the main Road where begins the line of a Tract of Land conveyed by the said Thomas Mann Randolph to Samuel Drew in by Deed bearing date on the eighth day of

January

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January one thousand seven hundred and ninety three recorded in the County Court of Henrico thence round the Land of the said Drew in according to the courses laid down in his Deed aforesaid untill it strikes the aforesaid line of Land conveyed by the said Thomas Mann Randolph to William Randolph thence along the said line North twenty four East till it strikes the corner of the small Tract of Land sold by the said Thomas Mann Randolph to John Ellis thence North seventy seven West to the mouth of Deep Run where it falls into Tuckahoe Creek on Mill pond Thence down the main channel of Tuckahoe Creek unto the place where it forks adjoining Tuckahoe Island thence down the Western run of Tuckahoe Creek to a white oak on the Bank of Tuckahoe Island where the dividing Fence on the said Island between the middle plantation and the Tuckahoe Estate begins thence South nine Degrees West sixteen poles to a sweet Gum in the said Fence then with the said Fence crossing the Island south five Degrees West ninety four poles to a Walnut and Sassafras on the Bank of the River thence down the River two hundred and seventy one poles to the beginning The same being the bounds of the said middle plantation at the time of the Execution of the said Mortgage as will more fully appear Reference being had to the said Deed Recorded in the General Court. To have and to hold the said Tract of Land with all and singular the appurtenances thereunto belonging to him the said John Wickham his Heirs and assigns forever to his and their proper use. In witness whereof we have hereunto set our Hands and Seals the Day and Year aforesaid

Sealed and Delivered In the presence of

signed John Hopkins {SEAL} Tho.^s Rutherford {SEAL} Cha.^s Johnston {SEAL}

And