Moore vs Gilliam | Gilliams of Virginia

Moore v. GILLIAM and GILLIAM v. Moore
Updated March 8, 2016

Background
The Will of John GILLIAM, dated 19 Sep 1791 bequeathed all his land to his son, Walter Boyd GILLIAM

Also upon the decease of my wife I give, devise and bequeath unto my son Walter Boyd GILLIAM and to his heirs forever all the land tenements and hereditaments which I shall die in possessed of, together with the negroe slaves followeth to with Ester and Pompey, Sucky, Billy, Dott, Tom, Ester, Sucky and Mat, Joe, Betty, Suckey and Mingo, Ciss, Phobe, Hall, York, Manmouth, Harry, Ned, Betty, and James, Moses, Bob, Mardy and Anthony, Lucy, Bristol, and the increase of the said female slaves, also I give to my said son, all my stocks of horses, cattle, sheep and hogs and my household and kitchen furniture and the tools and utensils of every kind belonging to my plantation, also I give the old Negroes following viz. Phebe, Lucy, Manny, Pegg, Doll and Hanah, also I give and bequeath after the decease of my wife, all the rest and residue of the negroe slaves which I may die possessed of and all the increase of my slaves not herein before mentioned to be equally divided in manner following.

In 1777 Rev. Patrick Henry bequeaths to his namesake, Patrick Henry GILLIAM, brother of Walter Boyd GILLIAM, a tract of land on the Branches of Allan’s Creek containing about five hundred acres, part whereof was in Goochland and Hanover Counties.

By 1784 John GILLIAM, Jr., (father of Patrick Henry GILLIAM and Walter Boyd GILLIAM) is in possession of this tract of land, presumably Patrick Henry GILLIAM has died unmarried and intestate. John GILLIAM, Jr. continued in possession of this tract until 1801 when he devises it to his son, Walter Boyd GILLIAM. Walter possesses the land until 10 October 1804 when he sold the same to John Spotswood Moore, who on the same day executed a deed of trust on said land to Meriwether Jones, Ruben [sic] M. GILLIAM, and Skelton M. GILLIAM. (John Spotswood Moore was married to Anna Katherine Dandridge, the daughter of Col. Nathaniel West Dandridge and Dorothea Spotswood. Reuben Meriwether GILLIAM and Skelton Meriwether GILLIAM were sons of Robert GILLIAM and Lucy Skelton. Robert GILLIAM is the brother of John GILLIAM, Jr.) When the purchase money was not wholly paid, the land reverts back to Walter Boyd GILLIAM on 10 February 1810. This land continues in dispute until November 1832.
[Meriwether Jones is the son of Thomas Jones and Sally Skelton. Sally was the sister of Lucy Skelton who married Robert GILLIAM, the uncle of Walter Boyd GILLIAM. Reubin Meriwether and Skelton Meriwether GILLIAM, sons of Robert and Lucy are the first cousins of Walter.]

Walter appears to have sold the land in Hanover county consisting of 192.5 acres to James Underwood circa 1821. The commissioner of the revenue transfered the whole tract of 560 acres to Underwood, but transferred back to Walter Body GILLIAM 367.5 acres in 1824. This tract which was in Goochland was in litigation and had not been conveyed and the transfer of the whole tract was an obvious error. Underwood conveyed the 192.5 acre tract to John M. Price circa 1831.

Walter conveyed 120 acres of this land in Goochland to William Woodson by deed of 7 Mar 1814. After Walter's death, William Pannill, Adm sold the remainder of the tract in Goochland, supposed to contain 247 acres more or less to Alden B. Spooner of Petersburg, the conveyance being made by deed of 31 Oct 1833.

Walter Boyd GILLIAM in addition to inheriting the tract originally bequeathed to Patrick Henry GILLIAM, inherits from his father, John GILLIAM, Spring Hill. Walter sells this tract of land to John GILLIAM (1761-1823), son of Robert GILLIAM and Lucy Skelton. This John GILLIAM (1761-1823) was married to Hannah Sampson.

This John GILLIAM (1761-1823) bequeaths Spring Hill to his son, William GILLIAM. See Codicil to the Will of John GILLIAM, dated 1 August 1820 and probated 12 August 1823, Prince George County, VA.



Overview
Walter Boyd GILLIAM was the son of John GILLIAM and Jane Henry, his wife. He was born after 26 Feb 1777 (since he is not mentioned in his grandfather's Will) and died in Petersburg, VA in 1821. He was the executor of his father's estate. He married Easter/Esther Tinsley. Walter left a Will dated 17 May 1821, which was probated with a codicil of the same date in the Hustings court of the Town of Petersburg on 21 Jun 1821.



January 31st, 1817
MOORE v. GILLIAM

IN an action of Ejectment in the Superior Court of Hanover County, in behalf of Walter B. GILLIAM, against Anna Moore, the Jury returned a special verdict, finding that John GILLIAM, father of the Lessor of the plaintiff, was in possession the land in controversy, in the summer of 1784, and continued in possession 'till 1801, 'till he died, having, by his Will, duly recorded, and found in haec verba, devised the same to him. that Mrs. GILLIAM, wife of John GILLIAM aforesaid, died before her husband; that the Lessor of the plaintiff was in possession 'till the 10th day of October. 1804, when he conveyed to the said land by Deed of bargain and sale, to John Spotswood Moore, which Deed was duly recorded, and was found in haec verba; that on the said 10th day of October, 1804, the said John Spotswood Moore conveyed by Deed of bargain and sale, 2. Where a the said land to Meriwether Jones, Reuben M. GILLIAM and Skelton M. GILLIAM as Trustees, to secure (he payment of the purchase money to the said Walter B. GILLIAM; which Deed was found in haec verba; that, the purchase money not having been wholly paid, one of the Trustees, in conformity with, and in pursuance of the directions of the said Deed of Trust, advertised and sold the said tract of land; that the Lessor of the plaintiff became the purchaser thereof; and that the said Trustee conveyed the same to him by Deed, bearing date the 10th of February, 1810, which was duly recorded, and found in haec verba: that John S. Moore died in February, 1810, in possession of the said land; that the defendant was his widow, and in possession of the same at the time of finding the verdict ; and that she was his wife at the time of the execution of the Deed aforesaid, from Walter B. GILLIAM to him, dated October 10th, 1804.

At the trial of the cause, the plaintiff introduced the affidavit of Thomas Ritchie, Editor and Printer of a paper called the Enquirer, printed in Richmond, stating that an Advertisement was inserted by him in that paper, from the 3d of June to the 17th of July, 1807, both inclusive, offering for sale on the 20th of July, 1807, at the Eagle Tavern, in the said city, for ready money, a tract of land, described as lying partly in Hanover, and partly in Goochland, adjoining the lands of Elisha Leake, Samuel Mosby, William Woodson and others, and so offered for sale, as was stated in said Advertisement, in pursuance of a Deed of Trust from John S. Moore to secure a debt due to Walter B. GILLIAM. The defendant, having waived all exceptions to the formality of taking said affidavit, and agreed that it should have the same effect, as if the said Ritchie were personally in Court on oath, objected to the same on the ground that it was not competent to prove the facts therein stated, in the absence of the Advertisement itself, therein referred to; the Advertisement not being produced: but the Court decided that the said evidence was proper to go to the Jury, in proof of the facts therein stated; to which opinion of the Court, the defendant excepted.

The plaintiff, also, having proved that John GILLIAM, the father of the Lessor of the plaintiff, was in possession of the land from the year 1784, or 1785,m to the time of his death in the year 1801; that he devised it by his Will to his Wife for life with remainder in fee to the Lessor of the plaintiff; that his wife died in his life time; and that the Lessor of the plaintiff conveyed the said land to John S. Moore in October 1804, who was in possession, till his death; the Court instructed the Jury, that they might presume that Walter B. GILLIAM, the Devisee, was actually in possession of the land in controversy, at the death of the Testator, John GILLIAM, and continued in possession until the conveyance by him, unless it were proved that some other person was, in the mean time, in possession of the said land. To this Instruction, the defendant also excepted.

Upon the special verdict, judgment was given for the plaintiff; from which the defendant appealed.

The counsel for the Appellant being absent, the cause was argued here by John Robertson for the Appellee, who contended that, according to the case of Chapman v. Armistead, 4th Munf. 383, if Mrs. Moore had a right of Dower in the land, the plaintiff in Ejectment was nevertheless entitled to recover; because it does not appear by the verdict, that her dower had been assigned her in the land in controversy, or that she resided thereon under the Act of Assembly, which authorizes the widow” to remain in the mansion house and the messuage or “plantation thereto belonging.” (a) But, in fact, Mrs. Moore had no right to be endowed of this land at all; for, on the same day that the Deed was made to her husband, he conveyed it by the Deed of Trust, to secure the payment of the purchase money. The land, therefore, was merely in transitu, (b) and never rested in the husband. Eo instanti, that the title passed to him, it passed from him to the Trustees

January 30th, 1817, Judge ROANE pronounced the Court's opinion, as follows:

“It does not appear from the special verdict in this case, that the tract of land, the subject of controversy, was the one attached to the mansion house of the Appellant's husband at the time of his death, whereby she might have claimed to be entitled to the possession thereof, until her Dower in her husband's lands should be assigned to her.”

“Thus considering that verdict, and being consequently of opinion that her right of Dower does not come in question in this cause, the Court passes no opinion thereupon, and affirms the Judgment.”

January 31st 1817
1. A plaintiff in Ejectment may recover against a widow holding possession of the land, (of which her husband died seised,) and having a right of Dower, if it do not appear that the land in controversy was assigned her as her Dower or as part thereof or was attached to the mansion house of her husband at the time of his death.
2. Where a deed is made to the purchaser of land in fee simple and on the same day, he without
being joined by his wife, executed a Deed of Trust to secure the payment of the purchase money; to raise which, the land in afterwards sold; quaere whether, if she survives him, she be entitled to any right of Dower in such land?
3. It seems, that the testimony of the Editor of a Newspaper, that he inserted therein, the requisite number of times, as advertisement, the purport of which he states on oath, is sufficient proof of such publication, on a trial in Ejectment, without producing the advertisement itself,
4. If it be proved on a trial in Ejectment, that the father of the Lessor of the plaintiff, who devised the land to him, was in possession thereof many years before and until his death; and that the Lessor of the plaintiff afterwards conveyed it to a person who was in possession at the time of his death; the Jury may presume that the Lessor of tile plaintiff was in possession from the death of his father to the date of such conveyance, if it be not proved that some other person, in the mean time, had that possession.
  • Reports of Cases Argued and Determined in the Supreme Court of Appeals of Virginia, By Virginia Supreme Court of Appeals, William Munford Published by I. Riley, 1819

GILLIAM v. MOORE
Widow is not entitled to dower in lands of which her husband had only a transitory seisin.
Seisin of the husband was merely transitory, where the lands were conveyed to him, and he, on the same day, reconveyed them to trustees to secure the payment of the purchase money.


EJECTMENT brought by GILLIAM against Anna Moore, in the circuit court of Goochland county, for a parcel of laud described in the declaration as so much of a larger tract, lying partly in Goochland and partly in Hanover county, as lay in the county of Goochland. The jury, on the trial, found a special verdict stating the following case: GILLIAM conveyed to J. S. Moore a tract of land, of which the premises in question are a part, and on the same day, by a deed purporting to be the deed of himself and Anna, his wife, although it was never executed by her, conveyed the same land to trustees, upon trust, to secure GILLIAM the payment of the purchase money. Several years after, the trustees sold the whole tract, in pursuance of the trust deed, to pay the purchase money due to GILLIAM. At the sale, GILLIAM became the purchaser, and the trustees conveyed the land to him, but before he took possession of it Moore died. Moore's mansion was on that part of the land which lay in Goochland county, and his widow claimed the right to hold possession of that part until dower in the whole tract should be assigned to her under the statute. The question of law upon the verdict was whether she was entitled to dower in the whole tract or not. The circuit court gave judgment in her favor, to which, on petition of GILLIAM, this court awarded a supersedeas.

Daniel and Lyons, for the plaintiff in error, contended that the conveyance and reconveyance were contemporary, and in fact and in law but parts of one and the same transaction; that Moore's seisin was merely transitory and instantaneous, and therefore his widow was not entitled to dower: Co. Lit. 31 b; 1 Rop. on Prop. 370; 2 Bac. Abr., Dower, c. 2, p. 370; Holbrook v. Finney, 4 Mass. 5GG [3 Am. Dec. 243]; Clark v. Munroe, 14 Id. 351; Stow v. Tifft, 15 Johns. 458 [8 Am. Dec! 266]; Childers v. Smith, Gilm. 200.

Forbes and Nicholas, for the defendant in error, argued that the verdict did not find that the conveyance and reconveyance were contemporary, or that they were, or were intended to be, parts of the same transaction; that the court could not supply the defect of the verdict by inference; and that if the deed and the deed of trust were not to be taken as parts of the same transaction, the seisin was not transitory, and the widow would Le entitled to her dower.

CARR, J. The first and principal question arising on this special verdict is, whether, under the deed from GILLIAM to Moore, a title to the land vested in Moore whereof his wife was dowable? I am clearly of opinion that she was not dowable. It was objected that the verdict has not found that the deeds were executed at the same time and as parts of the same transaction, and that, this being a special verdict, we can not draw this inference; but to my mind the finding is abundant to justify, and, indeed, to compel, the conclusion that the two instruments were parts of the one and the same transaction, and that the seisin of Moore was that instantaneous seisin, spoken of in the books, where the land was merely in transitu, and never vested in the husband. The deeds bear the same date, they are between the same parties, relative to the same subject-matter. The vendor conveys the land for so much money; the vendee reconveys it to secure that money. It is impossible to doubt for a moment the meaning, connection, and (I may say) unity, of the transaction. We have no reported case in our own books directly in point, and this, no doubt, has resulted from the general impression of the bar, that no such right existed in the widow, for the case must have happened a thousand times. The English books, however, nil lay down the position that a transitory seisin in the husband for an instant, does not entitle the wife to dower, and the point has been decided in the same way in Massachusetts and New York. A different decision at this day would be exceedingly mischievous, and open an inexhaustible source of litigation. With respect to the objection taken on the ground of uncertainty, it seems to have been founded in misapprehension of the meaning of the declaration. I think the judgment ought to be reversed, and judgment entered for the plaintiff on the special verdict.

CABELL, J. I am of the same opinion. The jury having found that the deed by which Moore acquired title to the land, and also that by which he conveyed it in trust to secure the payment of the purchase money, were both executed on the same day, I am of opinion that both deeds must, in the absence of proof to the contrary, be regarded as having been executed at the same time, and to have constituted parts of one and the same transaction, and consequently that Mrs. Moore is not entitled to dower.

TUCKER, P. I have no doubt that the description of the laud demanded by the declaration is sufficiently certain, and that no part, of what is demanded lies beyond the county Hue of Goochland, and so out of the jurisdiction of the circuit court. Nor have I any doubt as to the operation of the deed from the trustee to GILLIAM. That deed was executed shortly before Moore's death. It is found that Moore was in possession at his death, and that the widow was in possession at the time of the verdict, but no adverse possession is found. This will never be presumed against the true owner, but the law will rather presume, unless the contrary is proved, that the party who has possession holds it for the owner. And this is done, not only to uphold his right, but because the law will always presume that the acts of the party are rightful rather than wrongful. If in this case (as we think) the widow has no title to dower, and if her possession is adverse, then she is a trespasser or disseisor. This the court can not presume. The jury must find it, and hence the rule that adverse possession must always be expressly found, or such facts as amount to it incontestably. The real question in this case is as to the right of dower. The authorities cited by the counsel for the plaintiff in error, leave no doubt that where the vendor passes the title to the vendee, and at the same time takes a mortgage or deed of trust for the security of the purchase money, in which the wife of the vendee does not join, she will nevertheless take her dower in the estate, subject to the trust or mortgage. In such case the husband is seised but for an instant, and not beneficially for his own use; the deed of conveyance, and the mortgage or deed of trust, are to be considered, like the levy of a fine, as parts of the same transaction and of the same contract; as taking effect at the same instant, and as constituting but one act. If both contracts were contained in the same instrument, there could be no doubt; and it id the same thing though they are contained in different instruments, provided they are parts of the same contract and make together but one transaction. That they are parts of the same transaction must be presumed where they are executed at the same time; and moreover, as they can not be absolutely isochronous, as there must be some interval, however small, the court ought always to take the same day to mean the same time, unless tbe contrary be found; unless it be found that the acts were separate, distinct, and independent.

Judgment reversed, and judgment entered for the plaintiff. Cited in Wheatley's Heirs v. Calhoun, 12 Leigh, 274; and in Summers v. Darne, 31 Gratt. 801, to the point that two instruments which were intended to be executed together, although not executed contemporaneously, should, in equity, be regarded as parts of the same transaction; and in Wilson v. Davisson, 2 Rob. 398, to the point that where a vendor of land passed the title, and at the same time took a mortgage to secure the purchase money, the seisin was transitory, and the vendee's wife was not entitled to dower in such land.
The American Decisions: Containing All the Cases of General Value and Authority Decided in the Courts of the Several States, from the Earliest Issue of the State Reports to the Year 1869, by John Proffatt, Abraham Clark Freeman, Bancroft-Whitney Company, Bancroft-Whitney Company, Published by Bancroft-Whitney, 1886



The Advertisements referred to in the above case.

24 and 27 December 1805, Richmond Enquirer



At the request of Mr. Walter B. GILLIAM, and in conformity with a Deed of Trust from Mr. John S. Moore, for the purpose of securing the payment of money to the said GILLIAM, the subscriber, one of the trustees, will proceed to sell at the Eagle Tavern, on the 10th day of February next, so much of a tract of land, lying part in Hanover and part in Goochland, containing five hundred and sixty acres more or less, and adjoining the lands of Capt. Elisha Leake, Samuel Mosby, and William Woodson, as shall produce the following sums of money, with cost and charges of sale. Forty pounds, balance of three hundred, due on the 10th of Oct 1804, with interest till the day of sale, and tow hundred and thirty three pounds, six shillings, and eight pence, with interest from the 10th day of October last, till the day of sale.
Meriwether Jones, Trustee, December 24.


1 and 3 July 1807, Richmond Enquirer



To be sold for ready money, at the Eagle Tavern, in the city of Richmond, on Monday the 20th day of July next, by virtue of a deed of Trust executed by John S. Moore, for the purpose of securing a debt therein specified, due to Walter Boyd GILLIAM,
A Tract of land lying partly in Hanover, and partly in Goochland, adjoining the lands of Elisha Leake, Samuel Mosby, William Woodson, and others, and containing by estimation 560 acres, or so much thereof as will be sufficient to satisfy said debt, with the expenses attending the execution of the trust.
By order of the Trustees
Taylor & Brown

An advertisement for the sale of the Goochland tract.
[It should be noted that the tract is now referred to as the Dower of Mrs. Anna Moore as a result of the 1832 decision of the Court of Appeals.]

11 October 1833, Richmond Enquirer



Sale of Land, On the 31st day of October next at Johnson's Springs, in the county of Goochland, shall proceed to sell at public auction, a tract of Land lately occupied by Mrs. Anna Moore, as her dower in the real estate of her deceased husband, and formerly owned by Walter Boyd GILLIAM, deceased. The title to the land is believed to be undoubted, in consequence of the late decision of the Court of Appeals. Terms made known on the day of sale, which will be positive.
Wm. Pannill, Admr, de bonis non, with the Will annexed of Walter Boyd GILLIAM, dec'd.


Sources
  • Bazile, Leon M. (Leon Maurice). Wills of Rev. Patrick Henry and Walter Coles of Hanover County, VA. Virginia Will Records, page 144.
  • Land Books for St. Martin's Parish, Hanover 1812
  • Goochland Deed Book 22, page 441 and Deed Book 30, page 162.
  • Reports of Cases Argued and Determined in the Supreme Court of Appeals of Virginia, By Virginia Supreme Court of Appeals, William Munford Published by I. Riley, 1819
  • Richmond Enquirer, 1805 and 1807, 1833
  • The American Decisions: Containing All the Cases of General Value and Authority Decided in the Courts of the Several States, from the Earliest Issue of the State Reports to the Year 1869, by John Proffatt, Abraham Clark Freeman, Bancroft-Whitney Company, Bancroft-Whitney Company, Published by Bancroft-Whitney, 1886