Mordica Mabery
vs.
Benjamin Mabery

TSL&A Microfilm Roll  #A-5164
Loose Record #12405

Transcribed by  Jan J. Barnes
© 2004

To the Hon. S. Heermans, Judge of the County Court of Sumner County, presiding at Gallatin.
The bill and Petition of Mortica Mabery Administrator of John Mabery dec'd filed in the County Court of Sumner against Benjamin Mabery, Nelson Johnson, and his minor children, Manda M., James N., Mary A., Susan J., Margaret R., Sarah P., Eliza B., John R., and Elizabeth A Johnson, citizens of Sumner County; John Mabery, J. Brown and husband, R. Brown,  citizens of Rutherford County, John H. Knox, Joseph B. Knox, Sarah E. Knox, Wm. E. Knox and Samuel W. Knox, the four last of whom are minors, citizens of Cannon County, Henry Mabery a citizen of the state of Illinois, Sarah Bradly and husband Isaac Bradly citizens of Missouri, and the children of Cornelus Mabry, names and ages unknown, citizens of Missouri, and the child of Benjamin Johnson who was the son of Minnie and Nelson Johnson, who is suppose to be living somewhere in West Tennessee, defendants.

The Complainant would show your Honor that John Mabry, the ancestor of complainant and defendants, departed this life intestate in the County of Sumner in the year 1862, leaving complainant and the defendants his sole distributees and heirs at law - that he at the term 1865 of the County Court of Sumner took out letters of administration upon his estate, gave bond and was qualified as such in conformity with law.  Complainant has returned an inventory and amount of sales, showing the total assets to be only fifty five dollars, which was the only property left by the intestate, except a tract of land, containing about seventy five acres lying in Civil District No. 13, adjoining the lands of George T. Brown on the East, and South, Benjamin Mabery on the north and William Gillispie on the West, the title papers of which will be filed on the hearing the cause.  Compt., thus far has ascertained the following debts against the estate of his intestate to wit:
To Dr. Jesse Johnson about               $15.00
To Reuben Harris about                       10.00
To Benj. Mabry by unsettled a/c        250.00  
Making in all less interest this sum  $275.00
Besides these there may be other small debts and certainly the expenses of administration, all of which, your Honor will see greatly exceed the amount of assets in his hands.  It is therefore absolutely necessary to sell said land to enable Compt. to meet the liabilities of his intestate - the land is of inferior quality and owing to the great number of heirs and the size of the tract  provided it evens not encumbered with the debts of the intestate it would be wholly impracticable to make partition of the same between the parties in interest and for this reason a sale is asked.

The premises considered the Compt. asks your Honor to make the several persons named in the caption defendants to this bill; Let subpoena to answer issue for the resident defendants, and publication be made for the non-resident defendants - Let guardians ad litem be appointed for the minors and upon the hearing of the cause grant Compt. an order for the sale of said tract of land for the purposes specified in this bill, and grant him such other and different relief as the nature of his case may require and as in duty bound he will ever pray etc.
W. S. Munday
For Compt.

State of Tennessee
Sumner County    This day personally came before me John L. Bugg Clerk of the County Court of Said County, Mortica Mabry and made oath that the matters and things stated in the foregoing bill as of his own knowledge are true and those stated upon the information of others he believes to be true.
Sworn to & subscribed
before me Jany 22nd 1866
John L. Bugg Clk. M. Mabry

M. Mabry Admr. of Jno Mabery dec'd
vs.
Benj. Mabery et als
Be it remembered that the above cause coming on for hearing was had on the 20th day of July 1866 before Thomas C. Douglass, Judge of the County Court, upon the bill of Compt. the answer of the minor defendants by their guardian ad litem, M. S. Elkin, and the pro confessor taken in the cause, the interlocutory orders, the proof and the report of the Clerk in the cause.  And it appearing to the Court that it is wholly impractiable to make partition of the land, mentioned in the pleadings between the parties in interest, owing to the great number of them and the quantity and condition of the land and that it is manifestly for the interest of the minors that the same be sold for division.  It also appears to the Court that the personal assets in the hands of the Compt. are insufficient to pay off the debts of his intestate, which reason it necessary that the land be sold for this purpose also.

It is therefore ordered adjudged and decreed by the Court that the land mentioned in the pleadings be sold for the purpose of partition between the parties interested and the payment of the debts of the intestate of the Compt.  The Clerk is appointed Commissioner to make the sale who after giving twenty days public notice by hand bill, will sell the same to the highest bidder for not less however than four dollars per acre; Upon the following terms:  One hundred dollars cash and the balance upon a credit of twelve months, the purchaser giving bond, with approved security and a lien retained upon the land until the purchase money is paid.  He will report to the next or some subsequent term of this Court, until when all other matters are reserved.

M. Mabery Admr. of Jno Mabery dec'd
vs.
Benjamin Mabery et als.
In this case it appearing to the Court that process has been regularly served upon the defendants, Benjamin Mabery, Nelson Johnson, Manda Johnson, Jas. N. Johnson, Mary A. Johnson, Susan J. Johnson, Margaret R. Johnson, Sarah P. Johnson, Eliza B. Johnson, Jno. R. Johnson, Elizabeth Johnson, John Mabery, J. Brown, R. Brown, John H. Knox, Joseph B. Knox, Sarah E. Knox, Wm. E. Knox and Samuel W. Knox, and publication has been regularly and duly made as to the defendants, Henry Mabery, Sarah Bradly, Isaac Bradly, the children of Cornelus Mabry names and ages unknown and the child of Benjamin Johnson and grandchild of the defendant Nelson Johnson, and that all of them have failed to appear, plead, answer or demur; it is therefore ordered by the Court that Compts. bill be taken for confessed by the defendants Benjamin Mabery, Nelson Johnson, John Mabry, Jane Brown, Richard Brown, John H. Knox, Henry Mabry, Sarah Bradly, Isaac Bradly, and the cause set for hearing exparte as to them.  And it appearing to the Court that the defendants, Manda Johnson, Jas. N. Johnson, Mary A. Johnson, Susan J. Johnson, Margaret R. Johnson, Sarah P. Johnson, Eliza B. Johnson, Jno. R. Johnson, Elizabeth Johnson, Joseph B. Knox, Sarah E. Knox, Wm. E. Knox, Samuel W. Knox, and the children of Cornelus Mabry names and ages unknown, and the child of Benjamin Johnson dec'd and a grandson of the defendant Nelson Johnson are minors without regular guardian.  It is therefore ordered by the Court that Milton S. Elkin be appointed guardian ad litem and solicitor for said minors, he appearing in court and accepting the same.  He will file the answer of said minors, and otherwise represent them in the defense of their rights in the prosecution of Compts. cause.

*Note from transcriber:  The above is a partial transcription; much of the remaining pages were repetitive.  The "Eliza" B. Johnson mentioned in the above case should have been Elijah B. Johnson.

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