Transcribed by Lynda McLaren
Source: Jackson County Chancery/Circuit Loose Records
Available: Tennessee State Library & Archives and Tennessee Technological University Library
To the Honl Thomas Barry Chancelor of Tennessee Presiding at Gainesboro, Tennessee
The Bill of Complaint of Elizabeth Wheeler by her next friend James Draper citizens of Jackson County Tennessee against Mathew Wheeler, Pinckney McCarver, William H. Botts, L. A. McCarver, Thomas King, Hampton Keith, William Videtoe, Polly Videtoe, William R. Keith, all of Jackson County State of Tennessee except William H. Botts who is a citizen of Barren County Kentucky and Hampton Keith who is a citizen of parts unknown. Your orator & oratrix would respectfully Represent & show to your Honor that Complainant Elizabeth Wheeler is the wife of defendant Matthew Wheeler, that they intermarried on the (blank) day of (blank) 18 (blank). That they now have eight children all under the age of sixteen years, that they have but little property personal that the said defendant Matthew Wheeler has no real Estate. Complainants will further show that the said Elizabeth Wheeler is the daughter, heir at law & distributee of William Keith Dec'd. That as such heir & distributee she is entitled to one fourth part Distributive Share of all the Estate Real of her deceased father William Keith. That the said deceased died intestate in the County of Jackson Tennessee on the (blank) day of (blank) 18(blank) seized and possessed of a tract or parcell of land lying in the County of Jackson State of Tennessee in District No. 15 on the Dry fork of Martins Creek adjoined by the lands of John Pharris on the East, Henderson Williamson on the south, A. J. Vantreece and others on the west containing some Two hundred acres.
Complainant Elizabeth Wheeler will further show to the court that Nancy Keith who is the widow of the said William Keith Dec'd has had Dower Signed to her in said lands, that the Same has not been partitioned amongst those entitled thereto, to wit, Elizabeth Wheeler, Hampton Keith, William R. Keith, Polly Videtoe, the wife of William Videtoe, the only Distributees of said deceased.
Complainant will further show to the Court that defendant Matthew Wheeler is largely indebted, that he has become improvident, disapate, and keeps disreputable company, spends much time & means in So doing and entails trouble & disgrace upon himself & this complainant by that course of Conduct & She fears that she and her little children may be brought to want by Said improvident & reckless conduct of the defendant Matthew Wheeler if he is not prevented from using & disposing of the property that they now have or what may be collected from the estate of the said William Keith Deceased.
Complainant will further show to the Honl Court that the defendant Matthew Wheeler had no property at the time of their marriage except a horse, cow, & some small articles of property & that the horse and cow died soon thereafter & what little property they now have in their possession was accumilated by property received by the complainant Elizabeth from her father William Keith together with the Joint Labours of Complainant & defendant Matthew Wheeler since their marriage.
Complainant will further show to the Court that She and said defendant Matthew are now in the possession of the Following property, To wit, one horse, one mare, one small yoke of oxen, two cows, one calf, two yearlons, 28 head of Sheep, 8 head of Small Stock hogs, 3 Beads [beds], Bead Steads & furniture, one Beurae, one Cupboard, 2 clocks, some cooking vesels, Delph ware, 3 plows, 2 set of geere, lady's Saddle, Bridle, a little corn, & some bacon. The most of which is exempt from Execution.
Complainant will further show that the defendant Matthew Wheeler loaned to Pinckney McCarver one thousand dollars, or there about, and took his note therefrom with William H. Botts & L. A. McCarver Securitie on the (blank) day of (blank) 18(blank) which is still due & owing from said defendants to their codefendant Wheeler & which sum is the proceeds of the Joint labour of herself and children.
Complainant Elizabeth Wheeler will further show to the Court that She is entitled to a Distributive Share of the Estate of her deceased father William Keith, deceased boath personal & Real which will amount to the Sum of (blank) Dollars. Complainant Supposes that the personal estate of Said deceased is in the hands of Thomas King the Administrator of Said dec'd.
Complainant will further Show that the lands of Said deceased are not Susceptiable of partititon amongst those entitled to the Same for the reason that the tract of land is too Small & other reasons that will be shown by proof in this Cause.
Complainant will further State that She has Sufficient Cause to believe and does believe that under all the circumstances that it is her duty to herself & little Children Eight in No. to ask a Court of Equity by Decree to Settle all of the property named in this bill upon her for the Support of her self and Children.
The premises Considered Complainant pray that those named as Such in this Caption be made defendants to this bill that copy & process issue that publication be made as to the non-resident defendant that Defendants true and perfect answers make each allegation in this bill on oath. That defendant Mathew Wheeler be enjoined from Selling, transfering, or in any manner disposing of any of the property herein named that he be enjoined from Collecting or transfering the one Thousand Dollars note off of Pinckney McCarver, William H. Botts, L. A. McCarver and that said defendants be enjoined from paying over the same to the said defendant Wheeler or any other person for him, that or in any other wise disposing of the land, defendant Thomas King be enjoined from paying over any amount that may be in his hands as Administrator of the said William Keith dec'd bellonging to the Complainant Elizabeth Wheeler one of the distributees of Said deceased.
Complainant further prays that the one thousand Dollar note upon defts McCarvers & Botts be attached & held Subject to the further order of the Honl Court. That the lands of the Said William Keith dec'd be sold on such time as may seem best to the Court & then proceeds there of be divided amongst those entitled thereto, that upon a final hearing of this Cause your Honor pronounce a decree Settling all of the property named in this bill then one Thousand Dollars note & consideration upon Complainant Elizabeth Wheeler for the support of her self & children.
Complainant will further ask that your Honor further decree that if in Case defendant Matthew Wheeler will properly reform & treat his wife & family kindly that he be supported out of the proceeds of the aforesaid property & money mentioned above, but that he shall have no further Controle over the Same that James Draper be approved Trustee to manage Said Estate. This is the first application for writs of attachment & injunction in this Cause.
Dillard & Dewitt
Sols for Complainant
State of Tennessee
This day came before me Elizabeth Wheeler and made oath that the allegations made in her foregoing bill as made of her own knowledge are true & those made made on information she believes to be true.
Sworn to & Subscribed her
before me this the 13th Elizabeth X Wheeler
day of April 1867 mark
I agree to become Security for cost &exycution in the case together with A. W. Dewitt & hereby authorize R. A. Cox C&M to Sign my name to Bonds for cost & expenses this the 13th April 1867.
Cora E. Craig SEAL
In Chancery at Gainesboro
Elizabeth Wheeler by next friends re
Matthew Wheeler, Pinkney McCarver
and other defendants
Proof taken before me R. A. Cox clerk & master of the Chancery Court at Gainesboro in the above case at my office in Gainesboro on the 23rd day of July 1868 both parties being present.
William E. Jones aged 35 years duly sworn.
Quest. by def'd Pinkney McCarver
You will state whether saw or heard a conversation between Matthew Wheeler and Pinkney McCarver on or about August 1867 in relation to some payments which he had made on a note or notes which he Wheeler held on him ___ if so tell all said Wheeler said about said payments.
Ans. In Aug 1867 I heard a conversation between Pinkney McCarver & Matthew Wheeler in regard to two notes which Matthew Wheeler held on Pinkney McCarver. Matthew Wheeler agreed that McCarver had paid him three hundred & ninety two dollars in State Bank money a few days after the Mill Springs fight. Said payment was as they both said to go as a credit on said two notes. Wheeler further agreed that he was to bring said notes up to McCarver in a few days after said payment & McCarver was to pay them off. Wheeler further said that on account of the Mill Spring Soldiers being so thick around them he did not go back at the time he was to go and afterwards he forgot it & never had gone back. Pink & Matthew Wheeler were talking the matter over to themselves & called me up to where they were to witness said agreement and it was stated over - before me and I was Requested to bear witness of the fact.
Quest. You will state whether in the same conversation Pinkney McCarver did or not contend that he had paid off the Large note in full.
The complainant excepts to both of the foregoing questions by solicitor Dewitt. 1st because the conversation called for if occurred was after the commencement of this suit & for other reasons which will be assigned. Dewitt Solc
Ans. I don't think I heard McCarver contend that he had paid off the large note at that time. I mean at the particular time of the conversation above detailed by me.
Cross Examinaton by complainant
Question. You will state the amount of each note & the dates that you say that you heard the parties talking about.
Ans. I can't State as to dates nor as to the precise amounts. It seems to me that one was for five hundred dollars or over. That W. H. Botts was on as Security, and one was for about three hundred dollars.
Question. Say under what circumstances you came to see Matt Wheeler on the day you say that you heard the conversation & if you & Pinckney McCarver were not hunting him & if so for what.
Ans. Myself & Pinkney McCarver were hunting Matthew Wheeler at that time to settle that business and we found him at the Rock fence between his house and Judith Johnsons at the ford of the creek he was when we found him inside the fence and he got over the fence & came down to the creek to where McCarver & I were when (blurred) saw him he was walking along near the Rock fence & not hid.
Question. Say if it is not the fact that you had been to the house of Matt Wheeler the evening before you & McCarver saw him as you have stated and also if you had not also been to the house of Matt Wheeler on the Sunday previous & if so what was your business with him.
Ans. I think I did go to Matthew Wheeler's house the evening before the day on which I heard said conversation. This was on Sunday evening before the conversation occurred which was the only time I was at his house about the time Refered to. I did not have any business with him myself. I went along with McCarver at his Request & He went to see Wheeler about Said notes.
Question. How far did Pinckney McCarver live from Matt Wheeler at that time & how long had they so lived.
Ans. He lived about four or five miles from Wheeler at the time and had so lived from the time he moved from the lick to where he now lives. I suppose about four years -- previous to that time.
Question. Where did McCarver live before he moved to where he now lives?
Ans. He lived at Flynns Lick.
Question. How far was that from where Wheeler lived at the time you & McCarver went to see him as stated by you & how long had he lived there & how long had McCarver lived at the Lick.
Ans. Wheeler lived at that time about one & half miles from Flynns Lick & had lived there for fifteen or twenty years __ ______ and McCarver had lived at Flynns Lick Seven Years or thereabout previous to moving to where he now lives.
Question. You say that you heard a conversation between Matt Wheeler and Pinckney McCarver in relation to a payment made & consideration now do you mean to say that you heard all that was said at the time between the parties.
Ans. I don't know that I did hear all that was Said as I stated before they had a conversation to themselves immediately before which I did not hear - but I think I heard all that was Said between them after they came to where I was.
Question. Who was present except yourself & McCarver at the time you heard the conversation between the parties & how did you find Matt.
Ans. No one else was present. I had started down there with McCarver to See Matt & went with him to the Fork of the creek above Wheelers & stayed there I waited till McCarver went to the house to see if he could find him. He Returned without seeing him and we started back & were Riding along together & I looked into the field and saw him walking along by the fence & Spoke to McCarver I said there he goes. He called him & he came over to where McCarver was at the creek and they had a conversation - I being 20 or 30 Steps from them & then they called me to where they were or as I now recollect McCarver called me to them.
R. A. Cox C&M William E. Jones
One days attendance
State of Tennessee
Elizabeth Wheeler by James Draper her next complainant}
Matthew Wheeler, Pinkney McCarver, L. A. McCarver, W. H. Botts, Thomas
King, Hampton Keith, William Videtoe, Polly Videtoe & William R. Hunt
The joined and separate answers of Pinkney McCarver, L. A. McCarver and W. H. Botts to the bill of Elizabeth Wheeler by her next friend James Draper filed in the Chancery Court at Gainesboro in said state against these Defendants & the above named defendants Respondents not waving any right to demur to complainants bill but insisting and relying on the same as fully as if set out in full - Answering they say it is true that the notes alluded to in complainant's bill were given as stated for the amounts stated in the bill & Amends and they suppose about the dates and for the amounts as follows on or about the 21st May 1861. Respondents L. A. & Pinkney McCarver Executed to Elijah Wheeler two notes for $222 which should be credited as follows on or about (blank) day of March 1861 one hundred and thirty five dollars Respondents L. A. McCarver with Pinkney McCarver & W. H. Botts Security on or about 6th April 1860 executing this note to Elizabeth Wheeler for the sum of five hunded and twenty nine dollars 63/100. But Respondent L. A. McCarver answering says that he placed in the hands of Pinkney McCarver State money and available funds to pay off said five hundred and 29 dollars 63/100 note and said Pinkney McCarver told this Respondent that soon after the Retreat of the Rebels from Fishing Creek that he did pay off said note. Respondent admits there is a small balance due on the $222 note but he denies that there is anything due on the large or other note. Respondent W. H. Botts being security on the larger note above refers to event said L. A. & Pinkney McCarver to discuss the note to be paid off when Pinkney McCarver told him it was all settled up & paid off. Respondent Pinkney McCarver says the foregoing statements are true as made by his co-defendants. He further answering says that he did pay to Matthew Wheeler the amount due on the larger above described note and the reason the note was not delivered up to him was that it was in the hands of Elijah Wheeler & said Matthew promised to bring it to Respondent Pinkney McCarver and since this bill has been filed said Matthew Wheeler has admitted to this Respondent the payment in money of three hundred & ninety two dollars on said note to him but seemed to be hard of Recollection of the ballance. This bill is a fraudulent device of said Matthew Wheeler through his wife to collect again what he has once rec'd. There is no other reason why he should not sue in his own name as his answer to the bill of Judith Johnson in Relation to this same subject matter fully shows Respondents L. A. & Pinkney McCarver have been able one or both of them at all times to pay said debt & the same was paid the seeming needy condition & the avowed poverty of Wheeler & his wife forbid the ___ that they would or could permit the debt to stand so long Respondents having fully answered pray to be soon dismissed.
Leslie & Botts Sols
State of Tennessee}
On the 15 day of November 1867 Came L. A. McCarver, Pinkney McCarver & W. H. Botts the foregoing Respondents before me & made oath in due form of law that the foregoing as made by them respectively are true to the best of their knowledge, recollection & belief & subscribed in my presence this affidavit
R. A. Cox C&M P. McCarver
L. A. McCarver
W. H. Botts
In Chancery Court Gainesboro, Tennessee
Elizabeth Wheeler by next friend James Draper
Matthew Wheeler, Pinkney McCarver et al
Depositions taken before the clerk & master of the chancery court at Gainesboro at his office in Gainesboro on the 14th November 1868 taken by agreement in presence of soliciters on both sides to be heard on behalf of defendants McCarver. The witness being Jesse D. Naff first duly sworn by me.
Quest 1st. You will state whether you know Matthew Wheeler. Did you hear him say any thing about any payments made to him by Pinkney upon any notes which L. A. McCarver, Pinkney McCarver, & W. H. Botts security had executed to him or Elijah Wheeler for him, tell all he said & when it was if McCarver and him was in conversation tell over this conversation as well as you can remember it & what each said when both were present.
Answer I am acquainted with Matthew Wheeler. I heard him say in a conversation with Pinckney McCarver that he McCarver had paid him on a note that McCarver owed him with W. H. Botts security three hundred & thirty three or forty three Dollars. I do not remember which and a horse Bridle and saddle at one hundred thirty, forty, or fifty dollars. I don't recollect which they way Wheeler came to make this statement was this Pinckney McCarver said to Wheeler that Botts had told him that it was a good time for him to pay the note off as he McCarver had a plenty of State money & that was then a good time to pay the note & then Wheeler said that McCarver had made the payments as herein stated. I do not recollect that the name of L. A. McCarver was mentioned at that time. This conversation was in September or October last 1868.
Question. Now tell if in the conversation Wheeler said anything about the note of McCarvers on which Botts was security being paid off in full and if so tell what he said if anything about having executed to McCarver his receipt for the same. Tell all that was said on that subject.
Answer. I heard McCarver ask Wheeler in the same conversation if he had not paid him off in full all the notes that he owed to him. Wheeler seemed to study a little with his head down & raised his head up and said yes that he had paid him off in full all the notes & debts that he owed him & that he thought that he McCarver had a receipt that if he did not he ought to have & for McCarver to look amongst his papers & see if he could not find it. I don't recollect whether he said anything about the note that Botts was security on or not but he spoke of all the notes that he had on McCarver. He said in a previous part of the conversation spoken of the Botts note that Botts was security on as herein stated.
By the Complainant
Question. Who was present when this conversation took place?
Ans. Tinsley Rhodes, a Mr. Jo____, P. McCarver, myself and several others
Quest. Was Matt Wheeler drunk or sober at the time?
Ans. Sober so far as I know.
Quest. At what date did Matt Wheeler say the payments were made? If he said, say when it was.
Ans. I don't think he said.
J. T. Hogg
Tinsley Rhodes, aged 48, ___ ___ duly sworn.
Quest. If you know Matthew Wheeler, say so. State if you heard him at any time say any thing about Pinkney McCarver having paid him off in full a note on which W. H. Botts was security. Tell all he said about it.
Answer I am acquainted with Matt Wheeler. I heard him say that Pinckney McCarver had paid him off a note that he owed him with W. H. Botts security & that if he McCarver would look then he would find a receipt that he had given him, which was executed by him to McCarver about the time of Fishing Creek Battle in 1862.
Quest. At what time did you hear Matt Wheeler say what you have detailed in regard to the payment of the note?
Ansr. I heard this about the last of last September 1868.
Caption & Certificate _____
W. H. Botts Sol for defts
A. W. Dewitt Sol for Complt
To the Honorable Thomas Barry chancellor of the 7 Chancery Division of the State of Tennessee presiding at Gainesboro. The Amended bill of complaint of Elizabeth Wheeler a married woman by her next friend James Draper citizens of Jackson County & State aforesaid.
Against Matthew Wheeler, Pinckney McCarver, William H. Botts, L. A. McCarver, Thomas W. King, Hampton Keith, William Vettetoe, Polley Vettetoe, William R. Keith & Elijah Wheeler all of the county & state aforesaid except William H. Botts & Hampton Keith, who are nonresidents of the state of Tennessee.
Your orator & oratrix would state to your honor that at the time of filing their original bill in this cause they were not aware of the fact that the note or notes therein mentioned as being due from defendant Pinckney McCarver with L. A. McCarver & William H. Botts for the sum therein stated or near that amount was executed to Elijah Wheeler instead of Matthew Wheeler which they find to be the case since the filing of their said bill & the said notes have come to the hands of your orator James Draper. They state and so charge that said notes were executed to said Elijah Wheeler in trust for said Matthew Wheeler his son. The said Matthew Wheeler being much indebted at the time. Your orator & oratrix will state that said Elijah Wheeler had nor has he yet any such interest in said fund so in the hands of defendant Pinckney McCarver & others only that he acted as the agent in loaning said money & taking notes etc.
The premises considered, your orator and oratrix pray that those named as such in the caption be made defendants to this bill let copy & process issue, that writs of injunction issue to restrain Pinckney McCarver, William H. Botts, L. A. McCarver from paying to defendant Elijah Wheeler any part of said notes or to any person for him, that defendant Elijah Wheeler be enjoined from collecting said notes or any part there of off of any of said defendants & from selling, transferring, conveying to any other person, that writs of attachment issue to the end, that said notes be attached & held subject to the further order of your honorable court, that publication be made for the nonresidents, & for all other & further relief they may be entitled to in this as in the original bill & that this be filed as an amendment to the original bill. William H. Botts is not security in one of the said notes as your orators find on inspection of the notes. Let Elijah Wheeler answer this bill on oath. This is the first application for writs of injunction & attachment in the case of this amended bill. Dillard, Dewitt & Draper
Sols for Pltff
State of Tennessee
Before me James Draper makes oath that the matters & things stated in the foregoing amended bill are true to the best of his knowledge & belief & subscribed this affidavit before me this 15 May 1867.
R. A. Cox C&M James Draper