Bill for the partition of the land of Jacob & Leah Honaker


IN THE CIRCUIT COURT OF RUSSELL COUNTY, VIRGINIA
11 day of June, 1968
Clyde Stamper
Alice Stamper Compton
Wade Lincous Stamper----------------------------------Complainants

                  v.  BILL FOR PARTITION OF Real Estate
                       (Chancery Suit No. 8446)

Lucille Hubbard Honaker             Trula Elizabeth Dorsey
  147 Algonquin Road                  168 Beach Road
  Hampton, Virginia  23360            Hampton, Virginia  23360

Mabel Beulah White                  Charles Kemper White
  P.O. Box 542                        P.O. Box 542   
  Honaker, Virginia  24260            Honaker, Virginia  24260

Eliza Jane Cox Hess                 Bertha Fogleman Hess Morrison
  Forest, Virginia  24551             RFD #3 (Yuma Road)
                                      Gate City, Virginia  24251

William Hess                        Harry Whited Hess
  Rosedale, Virginia  24280           Forest, Virginia  24551

Joseph Hess                         Iris Gallyfriend Hess
  801 Oak Grove Road                  Rosedale, Virginia  24280
  Chesapeake, Virginia  23320        

Lena Lucy Hess Ray                  Wilson Charles Hess
  Star Route                          Middleburg, Virginia  22117
  Honaker, Virginia  24260

Ruby Beatrice Hess White            Emma Hess White
  RFD #1                              RFD #1
  Forest, Virginia 24551              Forest, Virginia  24551

Walter James Hess                   Eva Newberry Hess
  RFD #1                              RFD #1 Box 292
  Forest, Virginia 24551              Raven, Virginia  24639

Viola Ocie Coleman                  Genward Garland Hess
  RFD #1 Box 292                      1921 East 97th ST.
  Raven, Virginia  24639              Apartment # 306
                                      Cleveland, OHIO 

Garnett Grady Hess                  Charles Anderson Newberry
  Locust Street                       Raven, Virginia  24639
  Richlands, Virginia  24641

Celia Rosina Lowe                   Alonzo James Nipper
  P.O.Box 572                         Raven, Virginia  24639
  North Tazewell, Virginia  24630

Sp/4 James Emory Nipper             Peggy Nipper Smith
  52294118                            4527 Walcott
  U.S.A. Stratcom L.L. Det.,          Chicago, Illinois
  San Francisco, Calf.  96238

Donald Edward Nipper                Marie Robinette
  P.O.Box 48                          c/o Roger Robinette
  Chicago, Illinois                   5040 North Lockwood
                                      Red Ash, Virginia  24640

Sherman Newberry                    Irene Jamison
  Raven, Virginia  24639              4240 North Kenmore
                                      Chicage, Illinois

Pearl Caskey                        Ellen Blankenship
  RFD #2 Box 41                       3700 West George Street
  Bensenville, Illinois 60106         Chicago, Illinois  60647

Charles Beverly Newberry            Edith Calywith                  
  2733 North Lawndale Ave.            c/o Mrs. Ellen Blankenship
  Chicago, Illinois  60644            3700 West George Street
                                      Chicago, Illinois  60647

Emma Lee Jamison                    Bobby Newberry
  819 Leland                          3632 West Dickens Avenue
  Chicago, Illinois  60640            Chicago, Illinois  60647

Geraldine Newberry                  Lois May Vance
  4240 North Kenmore                  208 Sunset Street
  Chicago, Illinois                   Bristol, Tennessee  27620

Callie Annette Mercer               Hester Faye Mays
  RFD #2,                             RFD #2, Box 156
  Bristol, Tennessee  27620           Grundy, Virginia  24614

Hubert Jessie Hess                  Kenneth Andrew Hess
  RFD #1                              c/o Lois May Vance
  Bluff City, Tennessee  37618        208 Sunset Stree
                                      Bristol, Tennessee  27620
ALL PERSONS unidentified and suspected of being distributees and heirs at law of Patton Hess, Robert James Hess, John D. Hess and Etta Newberry, deceased, who were the children of Caroline Honaker Hess, deceased, who was a daughter of Jacob Honaker, de- ceased, who are made parties defendand by the general description of "PARTIES UNKNOWN"-------------------------------Defendants

To the Honorable R.J. Boyd, Judge of the above style court:

I.
Your complainants, Clyde Stamper, Alice Stamper Compton, and Wade Lincous Stamper, show unto Your Honor that their mother was born MOLLIE DORSIE HONAKER, the youngest of the ten children of JACOB HONAKER AND LEAR (LEAH) TAYLOR HONAKER, and that she departed this life intestate on the 1st day of March, 1964, at her home near Honaker on Clinch River in Russell County, Virginia.

Your complainants further show that their mother was twice married. Her first marriage was to GEORGE WASHINGTON STAMPER on the 23rd day of November, 1903, and of this marriage was born the following children, namely: CLYDE STAMPER, MABEL BEULAH, who married CHARLES KEMPER WHITE, ALICE, who married THORNTON C. COMPTON, and WADE LINCOUS STAMPER, all of whom are living. CLYDE, ALICE and WADE LINCOUS are the complainants to this suit, and MABEL BEULAH and her husband, CHARLES KEMPER WHITE, are the defendants to this suit. Her second marriage was to one WILLIAM BIRCHNER HUBBARD on October 23, 1919, and of this marriage two children were born, namely: LUCILLE, who married one EMMETT HONAKER, and TRULA ELIZABETH, who married one WILLIAM DORSEY, both of whom are now living and are parties defendant to this Bill of Complaint.

II.
That, of the marriage of JACOB HONAKER to LEAR (LEAH) TAYLOR, five girls and five boys were born, in the order of their ages, namely: CAROLINE, JOHN WESLEY, MARY, IRA, FLOYD, SCOTT, CHARISA, LETHA, COWAN, and MOLLIE DORSIE. That JACOB HONAKER was born Feb- urary 15, 1847, and died August 28, 1921. JACOB HONAKER AND LEAR (LEAH) TAYLOR were married April 1, 1865. They both are buried in the family cemetery on the land which is the subject matter of this Bill of Complaint.

III.
That JACOB HONAKER acquired title to three parcels of real es- state, which are the subject matter of this suit, as follows:

(a) TRACT 1, containing six (6) acres, lies on the north- east side of and adjacent to Clinch River, about one fourth of a mile upstream and above the mouth of Lewis Creek, a tributary of Clinch River, and in the New Garden Magisterial District of Russell County, Virginia, by deed of conveyance from MARTIN HONAKER and ELIZABETH HESS HONAKER, his wife, who were the parents of the said JACOB HONAKER, said deed bearing date the 28th day of November, 1882, and which is duly recorded in Deed Book No.20, at page 311, in the Clerk's Office of the Circuit Court of Russell County, Virginia. JACOB HONAKER built a small log house on this tract and lived thereon until his death. Complainants file herewith a certified copy of said deed, marked "EXHIBIT No.1--Deed", and make the same a part of this Bill.

(b) TRACT 2, containing twelve (12) acres, lies upstream and adjacent to the river and southeast of and adjacent to TRACT 1 above, and is the same tract of land that was con- veyed to the said JACOB HONAKER by ELIAS HONAKER and CATH- ERINE HONAKER, his wife, brother and sister-in-law of the said JACOB HONAKER, by partition deed bearing date the 10th day of April, 1899, and which is duly recorded in Deed Book No. 39, at page 397, among the record aforesaid. Com- plainants file a certified copy of said deed herewith, mark- ed 'EXHIBIT No.2--Deed", and make the same a part of this Bill.

(c) TRACT 3, containing twelve (12) acres, lies north of and a distance of about one mile from Tracts 1 and 2 above des- cribed, and is the same property that was conveyed to the said JACOB HONAKER by JOHN HONAKER and NANCY, his wife, by deed bearing date the 24th day of February, 1883, and which is duly recorded in Deed Book No. 20, at page 312, among the records aforesaid. Complainants file herewith a certified copy of said deed, marked "EXHIBIT No. 3--Deed", and make the same a part of this Bill.

IV.
That during the lifetime of the said JACOB HONAKER and LEAH TAYLOR HONAKER, i.e., on the 14th day of February, 1911, they gave and conveyed to their daughter, MOLLIE DORSIE, who as aforesaid, had married one GEORGE WASHINGTON STAMPER, an undivided interest in a certain portion of their land on which their daughter and son-in-law had constructed a dwellin house, in which she, the said MOLLIE DORSIE STAMPER, later MOLLIE DORSIE HONAKER STAMPER HUBBARD continued to live untile the date of her death, March 1, 1964. Complainants file herewith said deed of conveyance, which is duly recorded in the Clerk's Office of the Circuit Court of Russell County Virginia, in Deed Book No. 47, at page 199, marked "EXHIBIT No. 4-Deed to MOLLIE DORSIE STAMPER", and make the same a part of this Bill. Complainants further allege that the un- divided interest thus conveyed by JACOB HONAKER to his daughter was never partitioned and set aside to her amongst those persons to whom his estate passed upon his death intestate, execept as same appears hereafter in Paragraph XIII, but several acres of said Tracts No.1 and No.2 were fenced and down through the years this portion under fence has been known and treated and considered by the other children of JACOB HONAKER as the property of the said MOLLIE DORSIE STAMPER, afterwards MOLLIE DORSIE STAMPER HUBBARD. There are other evidences of the identification of the several acres occupied, held and used by the said MOLLIE DORSIE STAMPER HUBBARD in addition to the fences. JACOB HONAKER and LEAH TAYLOR HONAKER, his wife, in said conveyance to their daughter MOLLIE expressly provided, to-wit:

"whereas the party of the second part and her husband have built a good dwelling house on the lands of the parties of the first part, and the party of the second part not having and title to the said land on which the house is built, the parties of the first part convey to the party of the second part said house and land enough to make her and equal share with the rest of their children, * * * * * the party of the second part is to have here share of her Fathers land laid off so as to be convenient to the house and to include the house, but the house is not to be valued in making up the equal share", etc.

Complainants allege in this Court of Equity that they are entitled to have the undivided one-tenth interest acquired by the aforesaid conveyance, along with other five shares their mother later acquired by purchase, as will hereinafter be shown, laid off and assigned to them and to LUCILLE HUBBARD HONAKER and TRULA ELIZABETH DORSEY, in such manner as to include the dwelling house and all improvements erected thereon by their mother and by both of her husbands, and without being charged with the improvements in the valuation of said lands of which JACOB HONAKER died seize and possessed. That JACOB HONAKER and all of his children and suc- cessors in title to his said lands were and are charged with notice in said deed and of its contents, that JACOB HONAKER con- veyed to her a specific portion of his 30 acres, and that MOLLIE and her first husband made said improvements on the land prior to the conveyance. That the improvements, the house and a barn and other out-buildings, placed there by MOLLIE and her husbands con- stitute a large portion of the value of the real estate, said improvements being worth several thousand dollars in addition to the land.

V.
That, during the lifetime of JACOB HONAKER and LEAH HONAKER, i.e., on September 2, 1918, one of the sons, namely, IRA HONAKER, and his wife, MANDY, along with the said JACOB HONAKER, conveyed to GEORGE WASHINGTON STAMPER, the father of the complainants, an undivided interest in the 30 acres of land, as though it was to cover or embrace the interest or share of the said IRA after the death of his father. Complainants file herewith the said deed, duly recorded in Deed Book No. 59, at page 442, among the records aforesaid, marked "EXHIBIT No. 5--IRA'S Deed to GEORGE WASHINGTON STAMPER", and make the same a part of this Bill.

VI.
That SCOTT HONAKER and MARY, his wife, conveyed his undivided one-tenth (1/10th) interest or share, which he expected to inherit in the said lands from his father, JACOB HONAKER, to his sister, MOLLIE DORSIE HUBBARD, who had, in the meantime and after the death of GEORGE WASHINGTON STAMPER on September 5, 1918, married one WILLIAM BIRCHNER HUBBARD, as evidence by said deed of con- veyance dated May 13, 1926, and recorded in Deed Book No. 83, at page 378, among the records aforesaid. Complainants file herewith said deed marked "EXHIBIT No. 6--SCOTTS'S Deed to MOLLIE HUBBARD", and make the same a part of this Bill.

VII.
That CLARISA, a daughter of the said JACOB HONAKER and LEAH HONAKER, who first married CHARLES STUMP, who died February 6, 1919, and who then married on ELBERT FULLEN STUMP, conveyed here expected inheritance or undivided one-tenth (1/10th) interest or share in said lands to her sister, MOLLIE DORSIE STAMPER HUBBARD, by deed dated the 14th day of March, 1927, and which is duly re- corded in Deed Book no.83, at page 380, among the records afore- said. Complainants file herewith said deed, marked "EXHIBIT No. 7--CLARISA STUMPS'S Deed to MOLLIE DORSIE STAMPER HUBBARD", and make the same a part of this Bill.

VIII.
That LETHA, a daughter of JACOB and LEAH TAYLOR HONAKER, who intermarried one THOMAS FLETCHER, by deed bearing date the 17 th day of March, 1928, and which is duly recorded in Deed Book No. 83, at page 378, among the records aforesaid, conveyed her expect- ed inheritable estate from her father, an undivided one-tenth (1/10th) interest in said 30 acres of land, to MOLLIE DORSIE STAMPER HUBBARD. Said deed is herewith filed, marked "EXHIBIT No. 8 - LETHA FLETCHER'S Deed to MOLLIE DORSIE STAMPER HUBBARD", and make the same a part of this Bill.

IX.
That MARY, a daughter of JACOB AND LEAH TAYLOR HONAKER, who intermarried on FRANK RAY, by deed bearing date the 9th day of April, 1928, and which is recorded in Deed Book No. 83, at page 381, conveyed her expected inheritance from her father, an undivided one-tenth (1/10th) interest or share in said 30 acres of land, to MOLLIE DORSIE STAMPER HUBBARD. Complainants file herewith said deed, marked "EXHIBIT NO. 9 - MARY RAY'S Deed to MOLLIE DORSIE STAMPER HUBBARD", and make the same a part of this Bill.

X.
That FLOYD H. HONAKER, a son of JACOB AND LEAH HONAKER, by deed bearing date the 9th day of March, 1932, and recorded in Deed Book No. 194, at page 466, conveyed his inherited undivided one-tenth (1/10th) interest in his father's 30 acres of land, the the father having died March 6, 1932, to his sister, MOLLIE DORSIE STAMPER HUBBARD. Complainants file herewith said deed, mark "EXHIBIT No. 10 - FLOYD H. HONAKER'S Deed to MOLLIE DORSIE STAMPER HUBBARD", and make the same a part of this Bill.

XI.
Thus, it will be seen from the foregoing grants that MOLLIE DORSIE STAMPER HUBBARD acquired an undivided six-tenths (6/10th) interest in the lands of which her father, JACOB HONAKER was seized and possessed; that is to say 1/10th by grant from her father, 1/10th from SCOTT, 1/10TH from CLARISA, 1/10th from LETHA 1/10 from MARY, and 1/10th from FLOYD, all by grants; and that GEORGE WASHING STAMPER acquired IRA'S undivided one-tenth (1/10th) interest in the said 30 acres of land, by grants.

XII.
That MABEL BEULAH STAMPER WHITE, one of the children of MOLLIE DORSIE STAMPER, who intermarried on CHARLES KEMPER WHITE, along with her husband, acquired and purched the undivided one- tenth (1/10th) interest or share of her uncle, COWAN HONAKER, in said 30 acres of land, and evidenced by deed bearing date 6th day April, 1940, and which is duly recorded in Deed Book No. 106, at page 245, among the records aforesaid. Complainants file herewith said deed, and marks "EXHIBIT No. 11 - COWAN HONAKER'S Deed to CHARLES KEMPER WHITE and MABEL BEULAH WHITE", and make the same a part of this Bill.

XIII.
At this juncture, as of August 13, 1959, and notwithstand- ing that three of the ten shares were still outstanding in the lands of JACOB HONAKER, deceased, that is, the 1/10th share of IRA, which had been acquired by GEORGE WASHINGTON STAMPER, as aforesaid in Paragraph V, and who had died intestated leaving these three complainants and MABEL BEULAH WHITE, the 1/10th share of CAROLINE, who had died in the year 1909 leaving issue who took and the 1/10th share of JOHN WESLEY HONAKER, who died November 26, 1929, and prior to the date of the death of his father, JACOB HONAKER, leaving issue who took through but not from their father, MOLLIE DORSIE STAMPER HUBBARD and WILLIAM BIRCHNER HUBBARD, her second husband, on the one hand, and CHARLES KEMPER WHITE and MABEL BEULAH WHITE, his wife, on the other hand, then being under some erroneous impression, apparently, that they were the sole owners of all of the lands which JACOB HONAKER had one owned, that is, 30 acres in all, partitioned, or undertook to partition, said lands, or at least partitioned, or undertook to partition TRACT 1 containing 6 acres, and TRACT 2, containing 12 acres, and which two tracts adjoin and border on the river. Said deed of partition is dated the 13th day of August, 1959, and is duly recorded in Deed Book No. 172, at page 28, among the records aforesaid. Complainants file herewith said deed of partition, marked "EXHIBIT No. 12 - Partition Deed HUBBARDS and WHITES" and make the same a part of this Bill. Hereafter, the three outstanding undivided shares are considered. The purported partition was made in good faith, but without the heirs of JOHN WESLEY HONAKER, and these complainants, and the heirs of CAROLINE HONAKER HESS being parties thereto. JOHN WESLEY HONAKER had died November 26, 1929, intestate, and his share or undivided interest which he stood to inherit had passed to his heirs; thes complainants had inherited and undivided three-fourths (3/4) interest in the share of one- tenth (1/10th) interest IRA had conveyed to their father, GEORGE WASHINGTON STAMPER; and CAROLINE HONAKER HESS had died in the year 1909, intestate, and the undivided one-tenth (1/10th) interest or share which she stood to inherit had she survived her father pas- sed directly to her descendants upon the death of her father. Hereafter, as to these three shares or undivided interests will be considered in the next three succeding paragraphs of this Bill.

Complainants allege that it will be to the best interests of all the present co-owners to annul and set aside the water right provided for in the purported deed of partition on August 13, 1959, EXHIBIT No. 12; and for the Court to hold and adjudicate that the said water right be no longer considered as an appurtenance to the lands which complainants contend should be sold in this cause, that is, 26.22 acres, more or less; and that the WHITES should take and hold the 3.78 acres free of any burden of such an easement over and across from their land.

XIV.
The undivided one-tenth (1/10th) interest or share of the children of JOHN WESLEY HONAKER was conveyed, subsequent to the aforesaid LEONARD, NETTIE HESS and DORA SHEPPARD and his three grandchildren, purported partition, by his three children,/namely, JOHN ROBERT HONAKER, JAMES FRANKLIN HONAKER, and GEORGE BEN HONAKER, children of EARL HONAKER, a deceased son of JOHN WESLEY HONAKER, to CHARLES KEMPER WHITE and MABEL BEULAH WHITE, as evidenced by deed bearing date the 28th day of December, 1965, and which is duly recorded in Deed Book No. 199, at page 1, among the records afore- said. Complainants file herewith said deed, marked "EXHIBIT No. 13 Deed JOHN WESLEY HONAKER'S Issue to WHITES", and make the same a part of this Bill.

XV.
That GEORGE WASHINGTON STAMPER died intestate on the 5th day of September, 1918, having acquired by purchase the undivided 1/10th interest of IRA HONAKER, as set forth in Paragraph V above, and this undivided 1/10th interest passed and descended to his children, namely, WADE LINCOUS STAMPER, ALICE STAMPER (who became ALICE STAMPER COMPTON), and MABEL BEULAH STAMPER (who later became MABEL BEULAH WHITE), AND CLYDE STAMPER. WADE LINCOUS STAMPER, CLYDE STAMPER, and ALICE STAMPER COMPTON, by deed bearing date the 5th day of February, 1966, conveyed their undivided three-fourths (3/4) interest in the said one-tenth interest to their sister and brother-in-law, MABEL BEULAH WHITE and CHARLES KEMPER WHITE, which said deed is duly recorded in Deed Book No. 199, at page 96, among the records aforesaid. Thus, IRA's share passed in such manner that MABEL BEULAH WHITE now owns an undivided 5/80 part and CHARLES KEMPER WHITE owns and undivided 3/80 parts of the whole 30 acres. Complainants file herewith said deed, marked "EXHIBIT No. 14 - Deed STAMPER HEIRS to WHITES", and make the same a part of this Bill.

XVI.
That seven-elevenths (7/11) of the one-tenth (1/10) interest which would have passed to CAROLINE, had she survived her father, and who was a daughter of JACOB AND LEAH TAYLOR HONAKER, who intermarried one JACOB S. HESS, came to be owned by the said MABEL BEULAH WHITE and CHARLES KEMPER WHITE, as here and now stated, CAROLINE HONAKER HESS departed this life, as above stated, in the year 1909, prior to the deaths of her father and mother. Seven of her children, namely ELBERT HESS, DORA HESS CORDLE, MOLLIE HESS TAYLOR, ROSA HESS PROFFITT, EVELYN HESS PROFFITT, ANNA C. HESS TAYLOR, and PAULINE HESS PROFFITT, by deed bearing date the 6th day of November, 1965, and which is duly recorded in Deed Book No. 198, at page 650, conveyed their interest to MABEL BEULAH WHITE and CHARLES KEMPER WHITE. Complainants file herewith said deed, marked 'EXHIBIT NO. 15 - Deed of Part of Heirs of CAROLINE HONAKER HESS to WHITES", and make the same a part of this Bill.

XVII.
That the remaining children of CAROLINE HONAKER HESS, namely, PATTON HESS, ROBERT JAMES HESS, ETTA HESS NEWBERRY, and JOHN D. HESS, all departed this life intestate survivied by heirs to whom their respective undivided interests passed, as follows:

(a) PATTON HESS-died February 22, 1954, survived by ELIZA JANE COX HESS, his widow, who was born June 1893, and BERTHA FOLGLEMAN HESS, WILLIAM HESS, HARRY WHITED HESS, JOSEPH HESS, IRIS GALLYFRIEND HESS, LENA LUCY HESS RAY, WILSON CHARLES HESS, EMMA HESS WHITE, RUBY BEATRICE HESS WHITE, WALTER JAMES HESS, his children, who constitued his sole heirs at law and distributees.

(b) ROBERT JAMES HESS-died November 10, 1959?, survived by EVA NEWBERRY HESS, his widow, who was born Janurary 3, 1892 and VIOLA OCIE HESS COLEMAN, GLENWARD GARLAND HESS, and GARNETT GRADY HESS, his children, who constitute his sole heirs at law and distributees.

(c) ETTA HESS NEWBERRY-died November 10, 1959?, survived by CHARLES ANDERSON NEWBERRY, her husband, who was born April 24, 1886, and CELIA ROSINA NEWBERRY LOWE, a daughter, LAURA ADAFAIR NEWBERRY NIPPER, a daughter who died intestate June 29, 1960, survived by ALONZO JAMES NIPPER, her husband, and JAMES EMORY NIPPER, PEGGY NIPPER SMITH, and DONALD EDWARD NIPPER, her children; and MARIE NEWBERRY ROBINETTE, SHERMAN NEWBERRY, IRENE NEWBERRY JAMISON, PEARL NEWBERRY CASKEY, ELLEN NEWBERRY BLANKENSHIP, CHARLES BEVERLY NEWBERRY, EDITH NEWBERRY CALYWITH, EMME LEE NEWBERRY JAMISON, BOBBY NEWBERRY, and GERALDINE NEWBERRY, also children of ETTA HESS NEWBERRY, who constitute her sole heirs at law and distributees.

(d) JOHN D. HESS-died November 17, 1935, survived by LOIS MAY HESS, his widow, who was born May 23, 1906, and who has since married on ROY HERMAN VANCE, and CALLIE ANNETTE HESS who married PAUL MERCER, HESTER FAYE HESS, who married one OAKLY MAYS, and KENNETH ANDREW HESS, who constitutes his heirs at law and sole distributees;

and that all of the aforesaid persons, as your complainants are advised and believe, are now living and their addresses are correctly set forth in the caption of this Bill of Complaint; and all are above the age of twenty-one years and are sui juris.

XVIII.
That, as the title to the thirty (30) acres of land of JACOB HONAKER now stand, the heirs of MOLLIE DORSIE STAMPER HUBBARD namely, CLYDE STAMPER, ALICE COMPTON, WADE LINCOUS STAMPER, your complainants, and MABEL BEULAH WHITE, LUCILLE HUBBARD HONAKER and TRULA HUBBARD DORSEY own six of the ten shares, that CHARLES KEMPER WHITE owns and undivided 447/2640 part of the whole lands; that five of the six heirs of MOLLIE DORSIE STAMPER HUBBARD own 1320/2640 parts of said lands; that CHARLES KEMPER WHITE and MABEL BEULAH WHITE his wife, together own and undivided 1224/2640 interest, or 51/110 parts of the whole; that your complainants and LUCILLE HUBBARD HONAKER and TRULA ELIZABETH DORSEY, and the heirs of PATTON HESS, ROBERT JAMES HESS, ETTA NEWBERRY, and JOHN D. HESS, together own all the remaining undivided interests in the whole, have a 1416/2640 interest, or 59/110 parts, of the whole. Complainants file herewith a schedule showing the fractional parts owned by the various owners, marked "EXHIBIT No. 16 - Schedule of Interests", and make the same a part of this Bill.

XIX.
Complainants allege there is approximately 3.78 acres of the land purported to have been assigned to CHARLES KEMPER WHITE and MABEL BEULAH WHITE in the partition deed of August 13, 1959 (EXHIBIT no. 12), by MOLLIE DORSIE STAMPER HUBBARD and her husband, WILLIAM BIRCHNER HUBBARD, and on which the WHITE'S many years ago built a dwelling house and made other valuable improvements amounting to several thousand dollars, and on which said lands they have lived for, lo, these many years; that they have occupied said 3.78 acres, have it fenced or otherwise indicated by markings and physical evi- dences; that the 3.78 acres is a portion of the six acres which was purchased by JACOB HONAKER, and is designated in the Bill as TRACT no. 1; that complainanats allege the the 3.78 acres, considered with- out any improvements thereon, is equal in value to 51/110 parts of the whole 30 acres; and that all the remaining portion of the 30 acres being 26.22 acres, more or less, considered without improvements thereon, is equal in value to 59/110 parts of the whole; that the said CHARLES KEMPER WHITE and MABEL BEULAH WHITE will be willing to take and accept the 3.78 acres as representing all of their interests in the JACOB HONAKER lands, and that the same should be alloted to them with all the improvements they have placed thereon; that on ac- count of so many persons with diversified fractional interest in- volved as ownere of the remaining 26.22 acres of the JACOB HONAKER lands, it would be utterly impossible to divide the same in kind and that same should be sold by order of Your Honor's Court and the proceeds of the sale divided according to the interests of the owners.

XX.
There are or may be other persons interested in the subject matter of this Bill, particularly persons unidentified and suspected of being distributees and heirs at law of PATTON HESS, ROBERT JAMES HESS, JOHN D. HESS and ETTA NEWBERRY, as alleged in the caption.

XXI.
Complainants would show that there is a private family cemetary located upon the said lands, lying north of and close to the barn that was erected upon the lands by GEORGE WASHINGTON STAMPER, estab- lished by specific grant and dedication made by JACOB and LEAH HONAKER to JOHN WESLEY HONAKER and others, dated March 3, 1919, and duly recorded in Deed Book No. 58, at page 490, among the records aforesaid. Said cemetery is laid off into a square, and is now en- closed, or partly enclosed, by fence, and contains one-half acre. Complainants file herewith and attested phot copy of said deed, mark- ed "EXHIBIT no. 17 - Deed to Cemetery", and make the same a part of this Bill.

XXII.
Complainants allege that under date of January 25, 1906, JACOB HONAKER, and LEAH, his wife, conveyed to Clinch Valley Barytes Company a strip of land sixty feet (60 ft.) in width for the purpose of construction a railroad trach thereon, which said strip extended through TRACT NO. 1. and TRACT NO.2, and in general lay with the waters of Clinch River and of varying distances from the River of from about eighteen feet to two hundred feet. Clinch Valley Barytes Company, a corporation, thereafter, by deed bearing date September 18, 1907, conveyed said strip of land and all its rights thereto the Norfolk and Western Railway Company, and said deed is duly recorded in Deed Book No. 42, at page 307, among the records aforesaid. Complainants allege that the Norfolk & Western Railway Compan many years ago ceased to operate its trains over said strip, removed its tracks and all it equipment. Complainants are not advised as to the ownership of said strip of land at the present time, but verily believe the Railway Company has abandoned the strip of land and all its right and title thereto, and the land and title have revert4ed to the present land owners, who are in possession of tand are using said strip.

XXIII.
Complainants allege that several years ago the County of Russell and the Department of Highways of the Commonwealth opened a public road through the lands along the River, that is, the 6 acres and 12 acres, being Tracts No. 1 and No. 2. described in this Bill of Complaint; that the public road is designated Secondary Highway No. 723, and constitutes a spur from Secondary Highway No. 653, which is the Lewis Creek Public Road. The spur extends up the River a distance of 0.4 of a mile.

XXIV.
Complainants allege that the JACOB HONAKER lands are assessed upon the 1967 Land Book of Russell County, as follows:

(a) On page 240, line 2, to CHARLES KEMPER WHITE and wife, 3 acres on Clinch River in New Garden Magisterial District, the land being valued at $120, improvements at $760, or a total assessed value of $880.00.

(b) On page 240, line 3, to CHARLES KEMPER WHITE and MABEL WHITE, house and 24 acres, the land being assessed at $280, improvements $960, or a total accessed value of $1240.00.

Thus, making all of said lands assessed at $400.00 and improvements at $1,720, or a total assessed valuation of $2,120.00 for the lands and improvements.

XXV.
Complainants allege that said lands should be surveyed by direction and order of Your Honor's Court; that the lands under the possession of the WHITE'S, containing 3.78 acres, more or less, should be specifically shown on a plat, and also the Secondary Highway no. 723; that a survey is imperative in order that the Court may make partition in kind to the WHITES, and direct a sale of all the remainder of said lands and to afford all parties in interest a complete understanding of the property and their respective rights, and to afford prospective pruchasers a full and complete knowledge of said lands, the location thereof, the boundary lines, etc.

XXVI.
Your complainants and the said defendants are the co- owners in fee simple of said lands known as the 30 acres that was owned by the said JACOB HONAKER, and the object of this suit is to procure a partition thereof in some method prescribed by law. Complainants allege that it is obvious that the rights of all persons in interest cand and shold be protected under all the facts and circumstances and conveyeyances heretofore made during and after the life of JACOB HONAKER; that those persons and their successors in title who have placed valuable improvements on said lands should be protected; that the WHITES should be assigned and alloted in kind the 3.78 acres of land; that it is obvious that the remainder of said lands cannot be partitioned in kind amongst so large a number of co-owners, and that a partiition in kind is wholly impossible, and that no one or more of the co-owners is willing to take the remainder of the property at its value and pay to the other co-owners the value of their respective shares; and your orators allege that it is to the advantage and interest of all parties concerned that the remainder of the property be sold as a whole in order to effect a partition and the proceeds of the sale be divided by the Court amongst the various parties according to their respective rights in said real estate.

XXVII.
WHEREFORE, your complainants PRAY that a partition of the real property that was owned by JACOB HONAKER as hereinabove alleged be made by the Court in this cause in one of the modes prescribed by law; and particularly by assinging CHARLES KEMPER WHITE and MABEL BEULAH WHITE the lands on which they have made improvements, containing 3.78 acres, more or less, and without considering improvements made by them; that the remainder of said lands be sold as a whole and the proceeds of the sale divided among those entitled thereto; that a reasonable attorney's fee be allowed counsel for complaintants for services rendered to the parceners unrepresented by counsel. And for general relief.

CLYDE STAMPER
ALICE STAMPER COMPTON
WADE LINCOUS STAMPER
By Counsel

Geo A. Pruner
--------------
Counsel for Complainants
Lebanon, Virginia 24266


This file contributed by: Peggy Wooldridge



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