Saturday, April 21, 2018

Wednesday, April 18, 2018

TIMOLEON MORTON


TIMOLEON MORTON, Ohio County. This section contains many fine large farms, owned and occupied by men of education and intelligence, whose enterprise and influence raise farming to a profession. Prominent among this class is Mr. Morton; he owns a beautiful home and a farm of 170 acres of land, two miles northwest of Cromwell. He was born in this county in 1834, and educated in the common schools, and at the seminary and college at Hartford. He was under the tutorship of Prof. Frank Griffin, one of Kentucky's best teachers. His father, Richard L. Morton, was born February 6, 1801, and died February 23, 1872. His mother, whose maiden name was Fanny Stroud, was born March 26, 1806, and died February 3, 1860. They were industrious and enterprising people, who accumulated a fine property, and became leading and influential citizens. Mr. Morton was married, in 1869, to Charlotte C. Turner, a daughter of Dr. Southall Turner, now deceased. Mrs. Morton was born in Greenville, Muhlenburgh County, June 25, 1848, but was brought up in Ohio County. Mr. Morton enlisted in an independent company, First Kentucky Cavalry, which was consolidated with Col. Helm's command, who was afterward brigadier-general and commander of the division. He followed the fortunes of his command under Wheeler and Gen. Forrest and Wade Hampton, until the close of the war. When Jeff Davis left Richmond, his regiment was called to assist in escorting the president of the Confederacy through the South. At Washington, Ga., Mr. Davis left his escort, and two or three days afterward was captured by the Federal troops. Mr. Morton has been deputy sheriff; has followed the lumber business some years, and now, after a residence of twelve years on his present farm, is one of the most prominent and wealthy farmers in the county.

Source: J. H. BATTLE, W. H. PERRIN, & G. C. KNIFFIN 1895

Mr. Morton died 6 May 1897 in Ohio County and is buried in Old Liberty Cemetery, Beaver Dam.  His wife lived until 14 May 1907 and she is also buried in Old Liberty Cemetery.

 Timoleon Morton


Friday, April 13, 2018

City of Hartford v. Nall

This 1911 appellate opinion concerns a lawsuit filed by Maggie Nall and others against the City of Hartford concerning the City taking part of Mrs. Nall's property at the corner of Walnut and Main Street.  In 1909 the City took the property in an effort to improve the grade for the railroad leading to the depot.  The City excavated dirt from Mrs. Nall's property and destroyed her fence - despite her objection. Mrs. Nall (and unknown neighbors) sued the City and won. The City appealed and lost the appeal.


144 Ky. 259
City of Hartford v. Nall, et al.
Court of Appeals of Kentucky.
Decided June 16, 1911.

Appeal from Ohio Circuit Court.

        GLENN & SIMMERMAN and G. B. LIKINS for appellant.

        H. P. TAYLOR, M. L. HEAVRIN and E. M. WOODWARD for appellee.

        OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER

        Affirming.

        Appellees, Maggie Nall and others, brought this action against the Madisonville, Hartford & Eastern Railroad Company and the City of Hartford, to recover damages for trespass. The trial court awarded the railroad company a peremptory instruction, and the jury returned a verdict in favor of appellees, against the City of Hartford, for the sum of $750.00. From the judgment based thereon, the City of Hartford appeals.

        The appellees own a house and lot on the corner of Walnut and Main streets in the City of Hartford. In the year 1909 the city council of that city determined to improve that part of Main and Walnut streets adjoining the property of appellees, for the purpose of making an easier grade to the depot of the Madisonville, Hartford & Eastern Railroad Company. The city claimed that appellees had a portion of Main street, formerly called Market street, and of Walnut street under fence. Notice was given them to remove their fence from each of said streets. Appellees refused to do this, and the city, through its employees, entered upon their premises in front of each of these streets. In making the excavation for the purpose of improving the grade, appellant's employees removed about twelve feet of earth, six or eight feet high. In doing this, appellees' fences were entirely destroyed and their shade trees just outside and inside the fence were dug up and carried away, and their residence, well and coal house undermined. One S. S. May had a contract to make a fill on the lot on which was located the railroad depot building. The city, desiring the grade of Main and Walnut streets cut down, contracted with May to do the work. The city was also having a fill made where Walnut and Liberty streets approached the depot lot of the railroad company. May claims that none of the dirt taken from the strip of land claimed by appellees on Main and Walnut streets was placed on the lot of the railroad company, but went in the streets adjacent to said lot. There is some evidence, however, to the effect that a portion of the dirt was placed upon the railroad company's right of way.

        It is first insisted by appellant that either the demurrer to the petition should have been sustained, or its motion for a judgment notwithstanding the verdict should have been sustained. Since the year 1873, in order to hold adversely the streets, alleys or other public easements of a municipality, notice in writing of such holding and of the intention to hold and claim against the municipality must be given to the proper city authorities. (Section 2546, Ky. Stats.; Bosworth v. City of Mt. Sterling, 12 Ky. Law Rep., 157; Davis v. City of Clinton, 25 Ky. Law Rep. 2021.) The petition states that the appellees had held the land in controversy adversely and under an enclosure for more than fifty years. Suit was filed in 1910. It is, therefore, claimed that the petition alleges an adverse holding for only fifty years and one day prior to the bringing of the suit which would make the adverse holding begin in 1860, and that from that time to the passage of the act in 1873, requiring written notice of an adverse holding, fifteen years had not elapsed. Upon the trial of the case, however, the evidence shows that for twenty or twenty-five years prior to the year 1873, appellees and those through whom they claimed had had that portion of their lot, claimed to be a part of the city's streets, enclosed by a fence. As this evidence was received without objection, and as one of the issues submitted to the jury was the question of adverse possession for fifteen years prior to 1873, we conclude that the defect in the petition was cured by the verdict in favor of appellees. (Hill v. Ragland, 114 Ky., 209.)

        It is next insisted that, because there was no evidence to the effect that those through whom appellees derive title made any claim to that part of their lot alleged to be portions of the streets referred to, the evidence is not sufficient to show an adverse holding on their part. While it is true that the character of a person's holding of land may be shown to be amicable, we conclude that, where the person holding has actually enclosed the land, and is using and occupying it as his own, these facts in and of themselves are sufficient, in the absence of evidence tending to show the contrary, to establish an adverse holding on his part. In this case, appellees' grandfather, John G. Nall, acquired a home-stead before the year 1850. He held it until the year 1856. His wife and heirs then occupied the premises until about 1880. After that time appellees still continued in possession of the premises. A year or two later an action was instituted for the settlement of the estate of John G. Nall, appellees' grandfather. In that action, lot No. 92, which is also described as the homestead of John G. Nall, was sold to John E. Pendleton, one of Nall's heirs. In the year 1890, Pendleton and wife sold to appellees the lot of ground now owned by them. In this deed the land is described as part of town lot No. 92, as per plat of the town of Hartford, Kentucky, beginning at the northwest corner of said lot No. 92, corner of Market street and Cherry Alley; running then with Cherry Alley eastwardly 30 feet; thence at right angles 214½ feet southerly to Walnut; thence westwardly with Walnut street to Market; thence with Market street 214½ feet to the beginning.

        For appellant it is claimed that appellees, by the acceptance of this deed, abandoned that part of the streets they were holding adversely, and thereafter held under the deed. It is evident, however, that Pendleton bought the Nall homestead, and that the purpose of that deed was to convey the Nall homestead and all the land embraced therein. It is also plain, that appellees, by their deed, acquired that portion of the Nall homestead lying on the corner of Walnut street, Main street and Cherry Alley. We, therefore, conclude that their acceptance of the deed did not constitute an abandonment of whatever claim they had to the land by adverse possession. On the contrary, we think the purpose of the deed was to convey the land adversely held.

        Lastly, it is insisted that the verdict of $750.00 is excessive. In view of the fact, however, that there was evidence tending to sustain a verdict for this amount, and of the further fact that the jury, themselves, viewed the premises and saw the extent of the damage, we are not inclined to disturb their finding.

        There being no cross-appeal from the judgment in favor of the Madisonville, Hartford & Eastern Railroad Company, either by appellee or the City of Hartford, the question of the propriety of the court's action in directing a verdict in favor of that company is not before us.

        Perceiving no error in the record prejudicial to the substantial rights of appellant, the judgment is affirmed.

Wednesday, April 11, 2018

Martha (Mattie) Mason Chapman

Martha (Mattie) Mason Chapman applied for a pension based on her husband's service with the Confederate Army.  Her husband was William Rumsey Chapman who was born 6 Dec 1841 in Ohio County and died 7 June 1925 in Ohio County.  Martha lived until 26 Jan 1935. They are buried in the Beaver Dam Baptist Church Cemetery.






Saturday, April 7, 2018

JAMES S. MORTON


JAMES S. MORTON, M. D., was born in Hartford, Ky., May 24, 1828. His father, Isaac Morton, came to this county with his parents from Maryland when a child; was reared here, and for many years was in mercantile business in Hartford. His wife was Sarah H. (Shanks) Morton, of Bullitt County, Ky.  James S. was the third child in a family of ten children. At twenty years of age he began the study of medicine, and eight months later attended the Louisville Medical College, graduating therefrom in 1850. He located in Mount Vernon, Ill., where he practiced two years. He then went to California, and engaged in mining interests and the practice of his profession for seven years. He then came to Livermore, Ky., and practiced till September 22, 1861, when he, with two others, raised Company 0, Ninth Kentucky Infantry, Confederate service. He was commissioned second lieutenant, and was afterward elected captain of cavalry, but resigned, went into the ranks; was then appointed assistant surgeon, and was again commissioned lieutenant. He served till the close of the war; participated in the battle of Chickamauga, Atlanta campaign, etc. At the close of the war he resumed the practice of his profession at Hartford, Ky., where he has since remained. He is now, and has been for ten years past, county physician, and is a member of the board of health.

Source: J. H. BATTLE, W. H. PERRIN, & G. C. KNIFFIN 1895

Note:  James Shanks Morton died in Ohio County 12 Dec 1913 at age 85. Apparently he never married.  He is buried in the Oakwood Cemetery at Hartford.

Wednesday, April 4, 2018

City of Hartford vs. Gillespie

This appellate opinion from 1935 concerns a lawsuit filed by the City of Hartford against several individuals - some of whom were known as the Trustees of Oakwood Cemetery and others individuals that were related (in a business sense) to Oakwood Cemetery.  The issue for the court is, "who owns Oakwood Cemetery?"


260 Ky. 833
City of Hartford v. Gillespie et al.

Court of Appeals of Kentucky.

Decided October 22, 1935.

        Appeal from Ohio Circuit Court.

        BARNES & SMITH for appellant.

        HEAVRIN & MARTIN and GILMORE KEOWN for appellees.

        OPINION OF THE COURT BY JUDGE RICHARDSON.

        Reversing.

        The determination of the issues presented herein requires a chronological statement of the statutes and the deeds involved, and a construction of them.

        The city of Hartford, Ohio County, Ky., was incorporated by an act of the General Assembly, approved February 3, 1808. 3 Litt. Laws of Kentucky, p. 442.

        In July, 1871, the trustees, under the statutes in operation at that time, constituted a board to do business. They were "a body corporate, and by that name [trustees] may sue and be sued," with the right to "elect one of their body chairman of that board, with power "to purchase, take, and hold the title to not exceeding forty acres of land, in or near the town, for a public cemetery"; "to improve such ground, and appoint a keeper thereof"; "to sell small parcels of the ground to individuals for the purpose of interment"; "to receive and collect subscriptions to aid in purchasing, taking care of, and repairing such ground." 2 Stanton's Revised Statutes of Kentucky, 1867 Ed. p. 422.

        The General Assembly, by chapter 99, Acts 1891-92-93, p. 256, classified the cities and towns of the commonwealth. The city of Hartford was assigned to the fifth class by chapter 116, Acts of 1904, p. 280 (Ky. Stats. 1930, sec. 2740). Each city of the fifth class was thereby declared to be (section 3615, Ky. Stats.) a corporation by the name it then had, with perpetual succession, and with power to sue and be sued, to "purchase, lease, receive, hold and enjoy real and personal property, and control and dispose of the same for the common benefit." The government of the city of Hartford was, also, thereby (section 3616, Ky. Stats.) vested in a mayor and a city council to consist of six members. And it was further provided (section 3637-9) "that where the city owns a cemetery it shall be under the control and management of the city council; they shall fix the price at which the lots shall be sold, and may execute deeds therefor; a receipt from the treasurer shall be complete evidence of title."

        On the 27th day of July, 1871, a deed was executed and delivered by William P. Forman and Helen Forman, for the consideration of $500, evidenced by notes, "to the trustees" of the town of Hartford and their successors, in office, in trust, conveying to them as trustees, "for the use of the public as a cemetery, and for the use of such persons as the said trustees or their successors, shall sell lots or a part of the premises," a certain boundary of land, containing twelve acres and three rods with the reservation stated in the deed, which is not now here involved. On November 13, 1916, the city council of Hartford, by and through J.C. Iler, mayor, and J.A. Howard, clerk, executed and delivered a deed, conveying the same land to J.E. Bean, J.C. Iler, and C.O. Hunter, trustees of Oakwood Cemetery, "and their successors in office" for the recited consideration of $1 in cash, and the further consideration that the grantees and "their successors in offices will keep the amount of $1,000.00 and interest and hold same as a trust fund, not to be used for any purpose, but may use all the interest from the $1,000 annually, together with the proceeds of the burial lots to improve and upkeep the said cemetery."

        The deed undertakes to confer upon Bean, Iler, and Hunter, as trustees, and their successors in office, the power to appoint their successors, with the restriction that a vacancy be filled by them or their successors, by the appointment of a resident of the town of Hartford. John E. Bean was therein designated commissioner to make deeds to burial lots, with the power in Bean, Iler and Hunter, as trustees, to appoint another commissioner in lieu of Bean. And it contains this provision:

        "The said trustees shall have the power to make rules governing the cemetery, the same as the city council has, and if at any time, said trustees shall think it best to incorporate the cemetery, this may be done as the law of the state requires. The duty is imposed upon the treasurer of the cemetery, on the request of the city council, to report to it the amount of money received and paid out and the balance on hand in cash or notes."

        The city of Hartford brought this action against W.H. Gillespie, T.H. Black and W.J. Bean, trustees of Oakwood Cemetery, C.O. Hunter, J.C. Iler, and the executor of John W. Bean. The petition alleges that upon the execution and delivery of the deed by the Formans, the city of Hartford, by and through its board of trustees, immediately took possession of the land described in the deed, as a cemetery, and continuously exercised all authority over it, until the execution and delivery of the deed, by which the city undertook on November 13, 1916, to confer upon J.E. Bean, J.C. Iler, and C.O. Hunter, trustees of the Oakwood Cemetery, all of the city's authority over the cemetery, and the control of the $1,000 referred to in the city's deed to Bean, Iler, and Hunter; thereafter J.C. Iler ceased to be a resident of the city of Hartford, and Bean and Hunter elected W.H. Gillespie to fill the vacancy in the trusteeship occurring from Iler's removal from the city. Later, C.O. Hunter removed from the city, when Bean and Gillespie elected T.H. Black as Hunter's successor. And in 1932, upon the death of Bean, Gillespie and Black elected W.J. Bean to fill the vacancy resulting from the death of J.E. Bean. Gillespie, Black, and W. J. Bean are now claiming to be the successors in office of J.E. Bean, J.C. Iler, and C.O. Hunter. It is charged in the petition they are in the possession of the cemetery, and there are now in their hands, $210.69, cash; $400, evidenced by Stalsworth's note, and state warrants of the value of $1,673.62, derived from the sale of lots, and that, from the proceeds of the sale of burial lots, the trustees, acting under the aforementioned deed, had purchased of R.D. Newton a lot adjoining that embraced in the Forman deed, to be used, and was being used, as a part of the cemetery. Hunter, Black, W.J. Bean, J.C. Iler, and the executrix of the estate of John E. Bean, it is alleged, are wrongfully and without right withholding from the city council, the cemetery, the money, notes, and warrants, mentioned above; and are fixing the price of burial lots, selling and conveying the same to the purchasers, although requested to surrender the control and possession of the cemetery and turn over the money, notes and warrants to the city. The city in its petition, prays that the "ownership and rights" of the city of Hartford and Gillespie, Black, W.J. Bean, Hunter, Iler, and the estate of John E. Bean, to the cemetery, money, notes, and state warrants, and the land conveyed by Newton to them as trustees, be determined and declared. A demurrer was sustained to the petition. It was dismissed. A mere reading of the statutes in force at the date of the Forman deed, and the Forman deed, is sufficient to establish that the title to the land described in the Forman deed was in the city of Hartford at the date of the deed of Bean, Iler, and Hunter. The Forman deed, conveying the land to the trustees of the town, did not vest in them, but in the city, the legal title. Trustees of Falmouth v. Horter, 4 Litt. 119; Mason v. Mulholn, 6 Dana, 140. The statute, in operation in 1871, expressly provided that the city of Hartford may acquire title to land not exceeding 40 acres for cemetery purposes by a conveyance to the trustees of the town, and clearly defined the duties of the trustees in respect thereto.

        Section 3616 (Acts of 1891-92-93, c. 250, sec. 10) operated to abolish the office of trustees of the city of Hartford. Section 3637-9 expressly confers exclusive control and management of the cemetery, and imposes the duty appertaining thereto, upon the city council, with the power and duty to "fix the price at which the lots shall be sold" and to execute deeds therefor.

        With section 3637-9 of the statute in mind, it is easy to see that in so far as the deed to Bean, Iler, and Hunter, attempts perpetually to divest the city council of its statutory power and duty, respecting the control and management of the cemetery, the pricing and selling the lots therein, it is a nullity. City of Louisville v. Parsons, 150 Ky. 420, 150 S.W. 498. And in so far as it attempts to, or does, confer upon the trustees named in the deed and their successors the power of self-perpetuation, it is likewise invalid. It constitutes neither a sale of, nor an incumbrance upon, the land therein described. Trustees of Augusta v. Perkins, 3 B. Mon. 437; Giltner v. Trustees of Carrollton, 7 B. Mon. 680; Massey v. City of Bowling Green, 206 Ky. 692, 268 S.W. 348; Russell v. Bell, 224 Ky. 298, 6 S. W. (2d) 236.

        The members of the city council who authorized the execution and delivery of the deed to Iler, Hunter, and Bean, and Iler, Hunter, and Bean, must be presumed to have had knowledge of the existence and purpose of section 3637-9 at the time of the execution and delivery of the deed by the former to the latter. Its language is plain, simple, and free of ambiguity. Pulaski County v. Richardson, County Treasurer, 225 Ky. 556, 9 S.W. (2d) 523; City of Newport v. McLane, 256 Ky. 803, 77 S.W. (2d) 27, 96 A.L.R. 655.

        The city council, at the time it executed and delivered the deed to them, was an agent of the city, with delegated powers, and was without right to divest itself of and confer upon Iler, Bean, and Hunter the power or duty to exercise the discretion vested by the statutes in the council in the control and management of the cemetery and fixing the prices of the lots. Carter v. Krueger & Son, 175 Ky. 399, 194 S.W. 553; Conrad v. Pendleton County, 209 Ky. 526, 529, 273 S.W. 57; Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10, 2 S.W. (2d) 1039. And it must be presumed that in dealing with it, Bean, Iler, and Hunter not only had knowledge of the existence of this statute, but the extent of the authority of the city council when acting thereunder. Perry County v. Engle, 116 Ky. 594, 76 S. W. 382, 25 Ky. Law Rep. 813; Floyd County v. Owego Bridge Co., 143 Ky. 693, 137 S.W. 237; Leslie County v. Keith, 227 Ky. 663, 13 S.W. (2d) 1012.

        The city council, at the date of the deed to them, had the power under the statutes to appoint an administrative agent and delegate to him the power to control and manage the cemetery and to fix the price and execute deeds to lots therein, subject to its approval and regulation, but it was entirely without power to delegate to them the discretion which the statutes vest in the city council in respect to the cemetery, its control and management.

        It is apparent that it is our view that, at most, the deed of November 13, 1916, conferred on Bean, Iler, and Hunter, and those who have acted and are acting thereunder, no more than a mere agency, terminable at the will of the city council. It was therefore their duty, on the demand of the city council, to surrender to it, all money, notes, and state warrants derived from their control and management of the property, and the title and possession of the land paid for out of the sale of the cemetery lots, as well as the entire control and management of the cemetery.

        The judgment of the circuit court not being in harmony with our views, it is reversed, with directions to overrule the demurrer to the petition, and for proceedings consistent herewith.

Sunday, April 1, 2018

Benjamin F. Gray

Benjamin F. Gray applied for a pension in 1912 based on his service with the Confederate Army. Mr. Gray was born 23 January 1844 in Jessamine County, KY and died 29 Oct 1915. He served with the 4th Kentucky Cavalry more than two years and was captured and imprisoned. He is buried in Sunnyside Cemetery, Beaver Dam. Benjamin married Nettie Taylor in 1877 and Ella W. Hudson in 1889.