The pieces certainly seem to fit properly. Isaac and Martha Ann being brother and sister and Hugh Wallace Evans being a grandson of Isaac by Marcus Warren Evans. There is one interesting item in this that caught my eye. Isaac purchased this when he was married to Jane P. Morton who died in 1826, therefore was not alive to sign a dower release in 1830 to property that was sold by US Marshall for judgment in 1825. But, maybe I misinterpret the meaning. I read this repeatedly and couldn't determine the cause for suit unless it was finally determined that the legal description of the land didn't not agree with the physical boundaries as understood by all parties. -------------------------------------------------- From: "Evans-Richard List Administrator" <listadministratorevans@earthlink.net> Sent: Sunday, June 06, 2010 10:27 AM To: "OurEvans-Richard Rootsweb Mailing List" <EVANS-RICHARD@rootsweb.com> Subject: [EVANS-RICHARD] Samuel B Turner + Isaac Evans > Samuel B Turner was married to Martha Ann Evans, daughter of Richard > Evans and Mary Pearce. > I'm assuming that the Isaac Evans referred to below is Martha Ann's > brother. > If you don't think that's right, let me know > > > The following comes from Google Books > Reports of cases argued and determined in the Supreme Court of Ohio, > Volume 15 > By Ohio. Supreme Court, Ohio. Supreme Court Commission > > http://books.google.com/books?id=EeEDAAAAYAAJ&pg=PA172&ots=PtrYDEjRaq&vq=turner&dq=%22Samuel+B.+Turner%22+%2B+Evans&output=text#c_top > > To see original without ocr errors, follow link and look at "page view" > [ocr errors] > > I > > j .—— > > MeKimie r. Perrill et al. > > fore did not operate as an acquittal or otherwise bar a further > prosecution. Judgment affirmed. > > Brinkerhoff, C.J., and Ranney, Wilder, and White, JJ., concurred. > > Eli Mckinzie v. Jeptha Perrill And Others. > > 1. A purchaser of land in the actual possession of a third party, is > charg«abl« with notice of any equitable title of the party in > possession, whatever the same may prove to be. > > 2. The holder of a naked legal title to land, will not, as against a > plaintiff in possession of the land, and asserting by action an > equitable title thereto, be permitted to set up a countervailing equity > in a third person with whom he ia not in privity, and who, being also a > party defendant to the action, by bit default confesses the equitable > title of the plaintiff. > > Civil Action.—Reserved in the district court of Ross county. > > The plaintiff filed his petition, May 22, 1858, in the court of common > pleas, to enjoin the execution of a judgment in ejectment recovered by > the defendant, Perrill, against the plaintiff, in the district court of > Ross county, for the lands in controversy, and to obtain other equitable > relief. > > The case made by the petition is, in substance, as follows: That Samuel > Turner, the common source of title, in March, 1816, sold a tract of > land, including the parcel in dispute, to -George Denny, who paid him > for it. Before Denny purchased, ihe and Turner went upon the land, and > the latter pointed out the boundaries of the entire tract, and the sale > and purchase were made in reference thereto. The deed was made and the > description therein was supposed and intended, by both vendor and > vendee, to cover the entire quantity of land included within the > boundaries thus pointed out. The deed was delivered, with full > possession of the whole tract, under this .impression. > > > HcKintie e. Perrill et al. > > In September, 1818, Denny sold and conveyed to Isaac Erans. > > In April, 1825, the United States marshal, having sold the premises at > judicial sale under an execution on a judgment against Isaac Evans in > the United States district court in the district of Ohio, executed a > deed to Hugh W. Evans, the purchaser, in pursuance of an order of court > confirming the sale and ordering a deed. Under this deed Hugh W. Evans > received peaceable possession of Isaac Evans. > > On June 10, 1830, Isaac Evans and wife executed a deed of release to > Hugh W. Evans, supposing themselves to be thereby conveying their > interest, if any, in the entire premises. > > In 1835, Hugh W. Evans sold and on August 27,1836, conveyed to the > plaintiff". > > In these successive sales and conveyances the premises intended to be > sold and conveyed were the same purchased by Denny of Samuel Turner, and > the several deeds described the lands the same as they were described in > the deed from Turner to Denny, and, with the several deeds, the > possession of the entire tract of land intended to be conveyed, was > delivered. > > The several purchasers not suspecting any defect in the description, but > supposing their ownership to embrace the whole tract, went on and made > lasting and valuable improvements, and particularly the plaintiff. > > Samuel Turner from the time he sold to Denny up to the time of his death > in 1845, lived in the neighborhood of the premises and was fully aware > that the several purchasers, and particularly the plaintiff, were making > these improvements on the premises in controversy, under the belief that > they owned them. > > After the plaintiff purchased and received his deed, however, it was > discovered by Samuel Turner, and afterward by others, that the > description perpetuated in the several deeds was, by mistake, defective, > and although intended to, did not in fact, embrace the disputed parcel > of land. After Samuel Turner discovered this mistake, and before the > plaintiff became aware of it, the plaintiff continued to improve and > expend McKinzie t>. Perrill et al. > > money on the parcel, and Samuel Turner knew it, but con cealed the > mistake and its discovery, and told the plaintiff that his title was > good to the whole tract—that Denny had purchased the whole. > > In October, 1845, Samuel B. Turner, a son of Samuel Turner, well knowing > the facts of the case, procured a release of the premises in dispute > from his father for the nominal consideration of one dollar, but in > reality for nothing. > > On May 7, 1846, the defendant, Perrill, well knowing all these facts, > procured a quit claim of Samuel B. Turner, and although he lived near > the premises ever since the plaintiff purchased and went into possession > and made improvements under the supposition that his title was perfect, > the defendant, Perrill, brought ejectment in Ross common pleas, became > nonsuit and appealed to the district court and there at May term 1858 > recovered a judgment, and is proceeding to eject the plaintiff. > > By amendment to the petition, the heirs of Isaac Evans, who is deceased, > were made parties, and the plaintiff therein alleges against them the > acts of their ancestor and against him and them peaceable, notorious, > adverse and uninterrupted possession for more than twenty-one years. > > Perrill answered the petition, denying, in substance, the material facts > stated by the plaintiff as the grounds for relief: > > The heirs of Isaac Evans failed to answer or demur to the petition. > > At the June term, 1860, of the court of common pleas, the cause was > tried, and the court entered judgment against the heirs of Isaac Evans > by default, and ordered them to execute and deliver to the plaintiff > deeds of release for the premises in controversy and that on failure so > to do, that the judgment operate as a release, etc. > > The court further found against the defendant, Perrill— ordered him to > execute a release to the plaintiff, and, on failure, that the judgment > operate as such, and further forever enjoined him from executing his > judgment in ejectment. > > HcKiniie v. Perrill et al. > > Perrill appealed to the district court. The heirs of Isaac Evans did not. > > At the October term, 1861, of the district court, the cause came to > trial, and the court found the following facts, and reserved the case > thereon to this court for decision, to-wit-: > > "1st. That by the contract of sale made by the said Samuel Turner, to > George Denny, in 1816, mentioned in the plaintiff's petition, it was the > intention of said Samuel Turnei to sell, and said Denny to buy the whole > of the premises then owned by said Turner in Nathaniel Massie's survey, > No. 2461, and including the premises now in controversy, but that said > premises now in controversy were not embraced in the deed executed and > delivered by said Turner to Denny, dated 20th March, 1816, by mistake > and contrary to the intention of both parties. > > " 2d. That said Denny intended to sell, and the said Isaac Evans > intended to buy the whole of said premises including the land in > controversy, but that said land in controversy was not embraced in the > deed from Denny to said Isaac Evans bearing date 10th September, 1818, > but were omitted therefrom by mistake. > > "3d. That said Samuel Turner, in making sale of said premises to said > Denny, surrendered the same to said Denny, and the said Denny, in making > sale thereof to said Isaac Evans, surrendered said premises to said > Evans, but the possession of said Denny and of said Evans was not such > an actual and continual possession as would give them or either of them > a title by disseizin or adverse possession. > > "4th. That the title of the said Hugh W. Evans, under whom the plaintiff > claims, was acquired solely under and by virtue of the judicial sale > referred to in the plaintiff's petition and the deed made in pursuance > of such sale by William Doherty, marshal of the district of Ohio, to > said Hugh W. Evans, bearing date April 23, 1825, referred to in said > petition, and offered in evidence by the plaintiff, and on file in this > cause marked Exhibit No. 3, and by virtue of the deed executed by the > said Isaac Evans and wife to said Hugh W. EvMcKimie v. Perrill et al. > > ans bearing date June 10,1830, referred to in said petition, and offered > in evidence by the plaintiff, and on file in this cause marked Exhibit > No. 4; neither of which said deeds embraced the lands in controversy, > but do embrace the lands described by metes and bounds in said deeds > from Samuel Turner to George Denny, and from said Denny to said Isaac > Evans. > > '*5th. That the said Hugh W. Evans, after the execution and delivery of > said marshal's deed to him, took possession of the lands described in > said deed, and also of a part of the land now in controversy, and > claimed the ownership of all of said land from the time of the execution > of said marshal's deed to him until the said sale to the plaintiff. The > greater part of said premises in controversy remained uninclosed and > unoccupied until the plaintiff inclosed and occupied the same after his > purchase from said Evans in the year 1836. > > " 6th. That it is established by parol proof offered herein and admitted > subject to exceptions, that the object and purpose of said deed from > said Isaac Evans and wife to said Hugh W. Evans was merely to procure a > release to said Hugh W. Evans of the inchoate right of dower remaining > in said wife of Isaac Evans, and that the said Evans and wife supposed > that the lands described in said deed embraced the premises in > controversy, but that such supposition was based on the belief or > supposition that the description in said marshal's deed embraced said > lands. > > " 7th. That at the time of the conveyance by said Hugh W. Evans to the > plaintiff as evidenced by the deed of said Evans to the plaintiff > bearing date August 7, 1836, and on file in this cause, marked Exhibit > No. 5, the plaintiff supposed he was buying, and the said Hugh W. Evans > supposed he was selling, not only the lands described by metes and > bounds in said deed, but also the premises in controversy; and > accordingly the said McKinzie took possession not only of the lands > embraced in his said deed, but also of the lands in controversy, and > soon after, as early as the years 1837 or 1838, inclosed the same and > continued to occupy, improve, and culMcKimie v. Perrill et al. > > tivate the same, with the knowledge and tacit acquiescence of said > Samuel Turner uninterruptedly down until after the conveyance of the > premises in controversy by said Samuel Turner to said Samuel B. Turner > on October 2, 1845, and by the latter to the said Jeptha Perrill on May > 7, 1846. > > " 8th. That said Perrill purchased said premises in controversy from > said Samuel B. Turner, as evidenced by the deed of the latter to said > Perrill, bearing date May 7th, A. D., 1846, and on file in this cause, > marked Exhibit No. 6, for a valuable consideration, and without any > actual or other notice of the plaintiff s alleged claims, rights, and > equities in said premises than the said possession of the plaintiff > furnished or charged him with, in law, and that he had no notice, at the > time of his said purchase, of any claim, right, or equity of the said > Isaac Evans, or of his widow and heirs, parties herein, in said > premises, or of any other person whomsoever. > > Alfred Yaple and S. L. Wallace, for plaintiff. > > Hunter $ Daugherty and MeClintick § Smith, for defendant Perrill. > > Brinkerhoff, C.J. From the facts found by the district court it appears > that when Samuel Turner, the common source of title, conveyed to Denny, > and Denny to Isaac Evans, the grantors in those deeds of conveyance, > respectively, believed they were conveying, and intended to convey—and > the grantees believed they were receiving, and intended to receive, a > perfect title to the entire tract of land described in the petition, > including that part of the tract now in controversy between the parties; > but, by mutual mistake, the terms of description employed in the deeds > of conveyance did not embrace that part of the entire tract now in > dispute. And, throwing out of view, for the present, the sale by the > United States marshal to Hugh W. Evans, and the subsequent release to > him by Isaac Evans and wife—the same remarks are true in respect to the > conveyance from Hugh W. Evans to the plaintiff. > > Thus far, then, we trace to Isaac Evans, and find in him a > McKinzie v. Perrill et al. > > perfect equitable title to the entire premises; leaving nothing but a > naked legal title in Samuel Turner, or in the parties claiming under him > with notice of the outstanding equitable title. And, in respect to the > matter of notice, it may here be remarked, once for all, that at the > time Samuel Turner undertook to convey to his son, and he to the > defendant Perrill, the plaintiff was in the actual possession of the > entire tract, and both Perrill and the Turners, therefore, were > conclusively chargeable with notice of the plaintiff's equitable title, > whatever that might prove to be. House v. Beatty, 7 Ohio Rep. pt. 2, 90; > Kelley v. Stanberry, 13 Ohio Rep. 426; Williams v. Sprigg, 6 Ohio St. > Rep. 594. And whoever else may bave, it is clear that the defendant > Perrill has not the equitable title to the land in question. > > It does not appear, nor is it claimed, that Isaac Evans, in • whom the > equitable title clearly vested, ever attempted any conveyance of the > premises to any one, except by the deed of release by himself and wife > to Hugh W. Evans, after the purchase by Hugh W. at the marshal's sale; > and, therefore, if the equitable title did not pass by that deed of > release to Hugh W., and so to the plaintiff, it vested by descent in the > heirs of Isaac Evans, where, for aught that appears, it still remains. > > The sale by the United States marshal was, as to Isaac Evans, in > invitum, and to it the doctrine of caveat emptor applies in all its > strictness; and the plaintiff neither can, nor does, claim anything > through the medium of that sale and conveyance. > > The final question in the case then arises: Did the equitatable title to > the land in dispute pass from Isaac Evans to Hugh W., by the deed of > release from the former to the latter? The plaintiff has made the heirs > of Isaac Evans parties defendant to his petition, in which he claims the > equitable title to these premises through the medium of this deed of > release from their ancestor, and as against them. They have the > equitable title if the plaintiff has not, but they fail to answer; and, > by their default, they conclusively confess the allegations Loach v. > Church, Adm'r. > [graphic] > > and claims of the plaintiff against them. Code of civil procedure, sec. > 127. This, it seems to us, completes the plaintiff' s chain of title in > equity, and is conclusive of the case in his favor. The defendant, > Perrill, holds the naked legal title, and he is to be regarded as a > trustee for the owner of the equity. > > It is true, the district court find, as a matter of fact, established by > parol testimony, admitted subject to exceptions, that while Isaac Evans > and wife supposed that the terms of description employed by them in > their deed of release to Hugh W., embraced the entire tract of land, yet > the object and purpose of said deed was merely to release the wife's > inchoate right of dower therein. But, waiving all other questions as to > the competency of this proof, it seems to us that the defendant, > Perrill, can not be allowed thus to set up a countervailing equity in > third persons, with whom he is not in privity, and who, being parties to > the suit, by their silence disclaim for themselves, and in the > plaintiff's favor, the title, which he, a stranger, seeks to thrust upon > them. > > Decree for plaintiff. > > Scott, Ranney, White and Wilder, JJ., concurred. > > > > ------------------------------- > To unsubscribe from the list, please send an email to > EVANS-RICHARD-request@rootsweb.com with the word 'unsubscribe' without the > quotes in the subject and the body of the message >