McClaskey v. Barr

• Decision Date: 04 August 1891
• Citation: 47 F. 154
• Parties: McCLASKEY et al. v. BARR et al.
• Court: U.S. District Court — Southern District of Ohio

47 F. 154

McCLASKEY et al. v. BARR et al.

United States Circuit Court, S.D. Ohio, Western Division.

August 4, 1891

[Copyrighted Material Omitted]

The bill is for the partition of 161 4-10 acres of land, situate on Price's Hill, in the city of Cincinnati, county of Hamilton, and state of Ohio. The complainants claim to be seised in fee of one undivided fifth part of said land, and that those of the defendants who are in possession, being nearly 300 in number, are without claim or color of title as against them; wherefore they pray for partition, and for an accounting of rents and profits.

The bill sets forth that upon the death, on November 27, 1821, of Mary Jane Barr, who was seised in fee of said premises under the will of William Barr, Sr., the estate vested in his brothers and sisters and their descendants, subject to the life-estate under his will of Maria Barr, afterwards Maria Bigelow, mother of Mary Jane Barr;-- that Mary Barr was a sister of William Barr, Sr.;-- that she intermarried with Daniel Grafton, and that seven children-- Sarah, Mary, and Elizabeth; Daniel, John B., Thomas, and James--were the issue of their marriage.

Of these the bill avers that Sarah, Mary, Elizabeth, and Thomas died without lineal descendants; that the line of James has become extinct; and that the complainants are the descendants of John B. and Daniel, Jr., and are entitled to all the interest of said Mary Barr, sister of William Barr, Sr.

The cross-bill of Laura O. Henley et al. avers that the cross-complainants therein are the sole descendants and heirs of said Thomas Grafton, son of Daniel Grafton, Sr., and, as such, entitled to one-third of the undivided one-fifth interest claimed by the complainants, or, in other words, to the one-third of the interest of the said Mary Barr, sister of William Barr, Sr.

Cross-bills are filed, also-- First, by Samuel Barr et al.; and, second by Robert Eldridge et al. In the cross-bill filed by Samuel Barr et al., it is averred that the brothers and sisters of William Barr, Sr., were: (1) Robert Barr, of Westmoreland county, Pa.; (2) John Barr, of Franklin county, Pa.; (3) Andrew Barr; (4) Samuel Barr; (5) Jane (Barr) MeWhirter; (6) Sarah or Mary (Barr) Grafton. That Robert Barr died testate September 15, 1822, leaving his estate to Robert, Samuel, and John Barr, sons of his nephew William Barr, and grandsons of his brother John Barr. Two of the devisees named in the will of Robert Barr, to-wit, Robert and Samuel Barr, are cross-complainants, as are the descendants of the third devisee, John Barr. The cross-bill further avers that the cross-complainants above referred to, together with the devisees of Jane Chapman and the descendants of Martha Reed are entitled to one undivided thirty-sixth part of said premises by reason of the fact that their father, William Barr, of Westmoreland county, Pa., was one of seven children of John Barr, Sr., and that the line of Margaret Hattery, one of said children, has become extinct.

The complainants in the cross-bill filed by Robert Eldridge et al. claim an undivided thirty-sixth part of the premises as the sole living descendants of Robert Barr, late of Wood county, Ohio, who, it is averred, was one of seven children of John Barr, Sr., and, as above stated, that the line of Margaret Hattery, one of said children, has become extinct.

The lines of descent are specifically set out in the bill and in each of the cross-bills.

The complainants and cross-complainants admit, and the record discloses, that the defendants have bought in, and received deeds of conveyance for, all the right, title, and interest in and to the said premises-- First, of all the heirs of Jane (Barr) MeWhirter, sister of William Barr, Sr.; second, of all the heirs of Samuel Barr and Andrew Barr, brothers of William Barr, Sr.; third, of all the heirs of John Barr, brother of William Barr, Sr., excepting one thirty-sixth undivided part thereof claimed by Samuel Barr et al., in their cross-bill, and one thirty-sixth undivided part thereof, claimed by Robert Eldridge et al., by their cross-bill, both as above stated.

The defendants having by their answers denied that Mary Grafton was a sister of William Barr, Sr., and that the complainants are her heirs and legal representatives, or the heirs and legal representatives of a sister of William Barr, Sr., and having set up adverse possession, as a bar under the statute of limitations of Ohio, and laches on the part of complainants and cross-complainants, the complainants filed an amendment to their bill, (which was adopted by the cross-complainants, the answers to their cross-bills having denied the descent and heirship of the cross-complainants, and in all other matters having made the same defenses and pleas as those to the complainant's bill,) in which they set out at length the history of the title of the premises described in the bill, and certain matters of record, amounting, it is claimed, to admissions by defendants of their outstanding claims, within the period necessary to establish either adverse possession or laches.

The defendants answered, denying any personal knowledge of the matters or things alleged in the amendments, or of the title of the tract therein described, prior to the dates when they acquired their interest therein, but admitting, for the purposes of this cause, that on or about the . . . day of May, 1816, William Barr, Sr., died testate, and seised of the lands claimed by complainants;-- that his will was admitted to probate by the court of common pleas of Hamilton county, Ohio, at its July term, 1816,-- that by said will he devised said tract to William Barr, John B. Enness, And james Keys, his sons-in-law, in trust for his son John M. Barr for life; remainder to his son's wife, Maria Barr, for life, in case she should survive him, and leave issue by him then living; remainder in fee to any child or children of the said John M. Barr;-- that on the 10th day of August, 1820, John M. Barr died, leaving his wife, Maria, and one child, Mary Jane Barr, surviving him;-- that the said Mary Jane Barr died intestate, and without issue, November 27, 1821, leaving the said Maria Barr, widow of the said John M. Barr, (who afterwards intermarried with one John Bigelow,) surviving her;-- that at the time of the death of the said Mary Jane Barr she was seised of the lands claimed by complainants, subject to the life-estate of her mother, Maria Barr;-- that afterwards, at the December term, 1867, the supreme court of the United States, in the case of Lessee of Poor v. Considine, 6 Wall. 458, decided that Mary Jane Barr had a vested remainder in fee in said tract, subject to the life-estate of said Maria Barr, her mother, which upon her death descended, by virtue of the laws of descent in force in the state of Ohio at the time of the death of said Mary Jane Barr, to the brothers and sisters of William Barr, Sr., on their heirs, as heirs at law of the said Mary Jane Barr.

They further answered that they had no personal knowledge of who were the brothers and sisters of William Barr, Sr., nor had they sufficient knowledge or information whereon to found a belief as to who they were, and that they were therefore unable to answer whether they were the persons named in the amendment to the bill,-- John Barr, Samuel Barr, Robert Barr, Andrew Barr, Jane (Barr) MeWhirter, and Mary (Barr) Grafton; but they denied on information and belief that Mary Grafton was his sister. They admitted that a deed from Maria Bigelow, dated July 26, 1838, conveying to Ephriam Morgan and Lot Pugh, in consideration of $2,000, the tract described in the bill, with covenants against her own acts, and of special warranty against all persons claiming by, from, or under her, her heirs or assigns, appears of record in the recorder's office of Hamilton county, Ohio, the same having been recorded January 2, 1838; and they aver that the grantees entered in good faith, under said deed, into the sole, peaceable, open, notorious, and exclusive possession of said premises, adversely to the complainants, and each of them, and all the world.

The answer does not so aver, but the fact is, as appears from a certified copy, that Maria Bigelow's deed is a quitclaim to the grantees, their heirs and assigns, forever.

The answer further admits that Lot Pugh, on September 20, 1839, conveyed by deed in fee all his right, title, and interest in said premises to said Ephriam Morgan, and sets up that he, on the 13th day of September, 1839, entered into the sole, peaceable, open, notorious, and exclusive possession, adversely to the complainants, and each of them, and all the world, but denies that he had no other title thereto than that derived, as above set forth, from Maria Bigelow and Lot Pugh.

The answer further admits, upon information and belief, that Ephriam Morgan, after entering into possession as aforesaid was advised that the remainder in fee of said land had descended, upon the death of Mary Jane Barr, to the brothers and sisters of William Barr, Sr., and their heirs; and that thereupon, through his son-in-law Dr. William Woods, he purchased the outstanding interest of all the heirs of the said brothers and sisters of said William Barr, Sr., in said remainder, as he then believed. Then follows in the answer a list and general description of sixteen deeds to William Wood, and one deed to Ephriam Morgan, all in fee-simple, and each purporting to convey the entire interest of the grantors in the tract described in the bill. The answer states that none of these deeds contain any recitals as to the relationship of any of the grantors to Mary Jane Barr, or of any particular fraction or portion of interest inherited by the grantors; and denies any information or knowledge as...