USA > Massachusetts > Suffolk County > Chelsea > Documentary history of Chelsea : including the Boston precincts of Winnisimmet, Rumney Marsh, and Pullen Point, 1624-1824, vol 2 > Part 4
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41 Provincial Acts and Resolves, vii. 508, 509. The action of Ejectionc firma had become the regular and usual mode of trying possessory titles in England. Its chief development had however taken place since the founding of New England, and the simple jurisprudence of the colony had rendered unnecessary so complicated and artificial a form of procedure. Of the legal fictions involved Stearns ( Real Actions) remarks that " no client can possibly be made to understand these fictions."
" Supra, p. S.
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In this case no papers seem to have been preserved except the formal court record, but for the trial in the Middlesex County Court the papers are still on file. As it happened, forty acres of Captain Keayne's farm lay in Malden. Hence after the ren- dering of judgment in the lower court of Suffolk County, and before the trial by appeal, suit was brought for these forty acres in the Middlesex County Court, over which William Stoughton had been appointed judge by President Dudley, July 26. The trial took place in October, and lasted two days. The verdict was for Captain Paige. An appeal was taken by Cooke to the same November Court of Appeals to which the Suffolk County ease had been appealed. With one exception the evidence consisted of copies of documents and depositions filed in the Suffolk County Court. 43
The plea of Nicholas and Anna Paige by their attorney, Nathan- iel Thomas, in 1686 as in 1684, was that she was the sole leir-at- law of Captain Keayne. They placed on file depositions proving the line of descent. In response Cooke insisted that they had no right to sue, being debarred by the judgment in 1684, after which no action was permissible except by a review of the judgment then rendered; and also by the Statute of Limitations.44 Failing on this point, Cooke elaimed, as in the earlier suit in 1684, that all of Captain Keayne's estate had been given away by will, so that there was nothing for the heir to inherit; that the estate had been handed over to Mr. Lane on condition that he pay the debts and legaeies ; that he had fulfilled this agreement, including the legaey to the plaintiff ; and hence that she had no right to any of the land. Their own title they held by deed under seal from Mr. Lane; but possession alone was sufficient for them as the plaintiff eould not prove title.45 In support of these allegations Cooke filed thirteen papers copied from the earlier court files, his papers being at- tested by Daniel Allen, one of the two clerks of the Suffolk County Court, while Thomas Dudley, the other, attested the documents presented by Mr. Paige. In the answer, Nathan- iel Thomas entirely ignored the evidence introduced to prove that the whole estate had been given away by will and therefore that there was nothing for the heir to inherit, elaiming that as no spe- cific pieee of land was mentioned in the will, the whole landed estate of Captain Keayne should be adjudged to the heir; and in answer
43 The papers in this case are given infra, pp. 44-73. This was the first session of the Middlesex County Court after Joseph Dudley became Presi- dent of the Colony.
44 Infra, p. 46.
45 Infra, p. 50.
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to the plea that the estate had been sold by the executors to Mr. Lane by the agreement of March, 1659/60, he repeated the argu- menis made in the trial of 1681 for the exclusion of the paper in question.10
The case then turned on whether the title to Captain Kenyne's · estate had passed to Edward Lane, March 12, 1659/60. That the agreement of that date was intended as a final settlement of the case, and was agreed to by all parties concerned, appears clearly from the papers on file. Twenty years before, in 1666, and again in 1667, it had been so accepted by the General Court, which re- fused to listen to the pleas of Anna Paige, and of the overseers oľ the will, that it should be set aside. Two years before. in two trials, both carried by appeal to the highest court in the Colony, Paige's plea, similar to that now presented, had been rejected, and the title of Cooke had been re-affirmed. At this trial in 1686, as at that in 1684, the assertion was made, and proof was presented in its support, that Lane and his assignees had bona fide carried out the terms of the agreement, and no evidence was brought to show that he or his assignees, Cooke and Wiswall, had failed at any point.47
The evidence of the agreement presented in court was a copy attested by Daniel Allen, Clerk of the Suffolk County Court, of a copy attested by Edward Rawson, a cousin of Mrs. Paige and an overseer of Captain Keayne's will, as Secretary of the Colony. The signers then living, Simon Bradstreet, Thomas Danforth, and Edward Rawson, testified that they "were prsent at ye meeting & debate of the severall particulars, & do erteinly know yt ye severall articles therein named were then mutually agreed upon by all partyes concerned, & are fully sattisfied & confid' yt this Instrumt or writeing is a true coppie of ye orrig- inall then signed by our selves, & those others therein named." 48 The only testimony brought to invalidate the transaction was that of Simon Bradstreet and Edward Rawson to the effect that, ac- cording to the agreement, Lane was to give bonds to carry out its provisions as to the payment of debts and legacies, that he never did this, and hence that the transfer of title was never legally consummated.4º To prove the transfer of title Cooke produced evidence to show that after March 12, 1659/60, Captain John- son, one of the overseers of the will, gave formal delivery of the premises to Lane in the presence of witnesses.50 The court ruled that the title could not pass except "by a formal & suffi-
48 Infra, p. 64.
47 Vol. i. pp. 648-650; supra, p. 6; infra, p. 51.
48 Infra, p. 60.
50 Infra, p. G1.
4C Infra, p. 65.
VOL. II, -3
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cient Deed under the Hands & Seales of ye persons so Jmpow- er'd." 51 Whether the title did so pass to Lane by the agreement of March 12, 1659/60, as evidenced by the document presented in court was left to the jury by the Middlesex County Court. The ruling of the Suffolk County Court had left to the Suffolk jury no discretion whatever.52 The defendants could not produce the original document in court, and lost their case.
December 19, 1687, Lieutenant-Colonel Paige and his wife obtained from the Council a confirmation of their lands at Boston and Rumney Marsh."3 Joseph Dudley's estates were confirmed on the same day. Two days later Cooke, Wiswall, and Floyd tendered the following petition : 54
To his Exeelleney S! Edmond Andros Knt Captain Generall and Governo! in Chiefe of his Majesties Territory and Dominion of New-England
The Petition of Elisabeth Cooke Widow, Elisha Cooke, John Wiswall, and John ffloyde. Humbly Sheweth./.
That yo! Petr's being Informed, That Colonel Nicholas Paige and Anna his wife have made their application unto yo! Exey for a Confirmation and Patent of their Houseing & Lands seituate within the Township of Boston &cª Amongst which they have inserted and given in Two Messuages or Tenements with their appurces Lying at Rumney Marish, One in the Occupation of Benjamin Muzzey Sen! the other in the Oceupation of Isaac Lewis, And One Pasture Close of about one aere Lying in Boston : which s! Two Messuages or Tenements and Pasture Close were late in the Possession of yo! Petrs and whereto they lay Claim. -
Yo! Petrs therefore humbly pray yo! Exeys ffavour to Sus- pend a Grant of Patent of the Prmisses untill sueh time as yo! Exey shall please to give oppertunity and direet yo! Petrs when to waite upon you to Offer and lay before yo! Excy what they have to Say respeeting that matter. - And yo! Petrs as in duty bound shall for ever pray &eª
21° Decemb! 1687.
Elisha Cooke in behalfe of his Mother & himselfe. - John Wiswall 27 :2 :39 55 John ffloyd
51 Infra, p. 67. 52 Infra, p. 66.
53 Supra, p. 8.
55 Vol. i. p. 167.
Mass. Archives, cxxvii. 297.
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CHAPS. XIX-XXI] APPENDIX 1217278 55
Apparently this petition resulted in nothing. The survey of the farm of Nicholas Paige at Rummey Marsh, made in 1688, is still on file.50
For nine years then Nicholas and Anna Paige, having de- feated Cooke, enjoyed their estates; but Cooke would not rest. Elder Wiswall died in 1687, and in Jamary, 1689/90, Cooke was sent by the Colony, as one of its agents, to England. Octo- ber 23, 1692, he returned to Boston from London, but owing to his dispute with Mather in England, and his opposition to the new charter from William and Mary, he had many opponents in New England. Thus in June, 1693, his election to the Council was negatived by Governor Phipps.57 But in 1691 he was re- elected to the Conneil, and was permitted to take his seat. About the same time he seems to have turned to the task of recovering the farm at Rumney Marsh. First it was necessary to secure a standing in court.
In 1684 Elisha Cooke and John Wiswall had not only been obliged to defend their suit against Nicholas Paige and his wife, but, as in 1666, they had on hand a snit against Benjamin Muzzey. At the April term of the County Court in 1681 they recovered against Muzzey and Joel Jenkins, two hundred pounds and costs of court. This being the forfeiture of a bond, it was chauncered, or reduced, to one hundred twenty-six pounds in money (less ten pounds already received) on April 2, 1685.58 On June 21, 1691, Elisha Cooke secured a writ of scire facias calling Benjamin Muzzey of Cambridge, son and administrator of the estate of Benjamin Muzzey deceased, and Ezekiel Jenkins of Malden, son and sole excentor of the will of Joel Jenkins, to appear in court on the first Tuesday in July to show cause why an exe- cution should not issue against them. At the July court the " Parties appeared by themselves & Attorneys. Benj" Muzzey ye Adm! pleads he hath no Estate of Benj? Mnzzey deed in his hand but one pound nine shillings six pence weh he is ready to pay. The Writt was read and no other pleas offered to prove payment. The Judgement was affirmed by the Court." 59 As Muzzey did not
60 Supra, pp. 15, 16.
" Sewall, Diary, i. 367, 378, 379.
G8 MISS. Ree. of Suff. Co. Court, 1680 to 1692, pp. 166, 179. The bond was dated July 27, 1682.
MSS. Ree. of the Inferior Court of Common Pleas, 1692-1698, p. 65. See also the account presented by Benj. Muzzey to the Probate Conrt, Inly 2, 1694, and recorded in L. 13. f. 446; the inventory presented April 28. 1691, in L. 8, f. 203. Mnzzey and Waite's bond of April, 1694, the delivery of goods to Muzzey in the summer of 1694, and the receipt of £24 from John Floyd discredit this plea.
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dispute Cooke's claim, the question as to the ownership of the farm was not brought before the courts.
March 6, 1694/5, Elisha Cooke was nominated by the Council a judge in the Superior Court of Judicature, receiving twenty votes against five scattering,60 and was confirmed by the acting Governor, William Stoughton. On the twenty-fifth of the same month, eight months after the confirmation of the judgment against Muzzey, execution was issued for one hundred twenty pounds fifteen shillings and eight pence. The return of the under sheriff of Middlesex County was that Benjamin Muzzey declared . he had no estate of his father in his hands - only five pounds six shillings and six pence.61 No further action was taken in the case for over a year.
Six months later, September 18, 1695, Cooke took out an attach- ment on the farm at Rumney Marsh and on an acre of land in Boston, and entered the case at the October term of the Inferior Court of Common Pleas. It was an action by review of the action of ejectione firmae by which Nicholas Paige and his wife had obtained possession of the property in 1686. The decision was rendered at the January court of 1695/6. Elisha Cooke and his associates were nonsuited.62 Apparently in 1695 Cooke had, according to the laws then in force, no right of review. The act establishing the courts, which was passed in 1692 under the pro- visions of the new charter, permitted a review immediately after judgment, and the supplementary act of Oct. 22, 1694, modi- fying this, permitted a review within eighteen months of the ren- dering of judgment and no later. Furthermore an act passed in December, 1693, permitted judgments rendered in County courts since the year 1686, and before the passage of the act of November, 1692, to be reviewed at any time before December, 1694, but not later.63 On the other hand, the act of October 14, 1692, stating that quiet possession from October 1, 1692, to October 1, 1695, would give confirmation of title, would have barred all possibility
Sewall, Diary, i. 301.
01 Suff. Early Court Files, Nos. 3385, 4109. This balance on hand differs from that given above; it is copied from the writ of November 9, 1696.
62 The plea of Nicholas Paige, signed by his attorneys, and the answer of Elisha Cooke are given supra, p. 9. The decree of court is in M'SS. Ree. of Suff. Co. Court of Common Pleas, 1692-1698, pp. 121, 122. The judges present were Elisha Hutchinson, John Foster, Isaae Addington, and Peter Sargeant.
03 The aet of 1694 and of December 11, 1693, were not disallowed until December 10, 1696. The act of November 25, 1692, to which both the preceding aets were supplementary, was disallowed August 22, 1695,
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of future recovery unless Cooke took action before that time."4 Hence, probably, suit was brought as already described.
Having been nonsuited, Elisha Cooke, John Wiswall, and John
but the letter from the Privy Couneil to the governor conveying this intelligence was dated December 26, 1695, and hence coukl not have reached America till after the trial had ended. Provincial Acts and Resolves, i. 72, 73, 109, 110, 143, 184, 185. Elisha Cooke, in 1702, said that news of the disallowance of the Act of October 14, 1692, also of date Angust 22, 1695, reached America after the trial. The attorneys of Nicholas and Anna Paige quoted the "Province Law Entitled an act for Establishing Courts of AIndicature &c. page 41" as a bar to the action of review. The supplementary act of December 1I, 1693, is found on page 41 of the edition of the Province Laws in 1694. It recited that whereas in the act of 1692 for establishing Judicstories and Courts of Justice, the provision as to " reviews and writs of error, doth only ex- tend to the courts established by said act, and no provision is thereby made for any tryals heretofore had in the county courts in the late distinct colonies now united within this province, which are now dis- solved: and whereas, for want of dne provision and remedy therein, great damage and injury may oceur to some of their majesties' good subjects within this province, for redress whereof, and that no defeet or want of justice may in any manner happen or be," therefore it was enacted " That when any tryal, judgment, sentenee or deerce has been had, given or made in any of the county courts within the late colonies of the Massachusetts or Plimouth, or province of Main, of what nature, kind or quality soever, the same have been there tryed, had, given or made, since the year of our Lord one thousand six hundred eighty and six, and no review or appeal thereupon heretofore had and prosecuted, it shall and may be in the liberty of either party (plantiff or defendant), agrieved, within the space of twelve months next after the date of this present act, and not afterwards, to bring his or their action of review to the inferiour court of common pleas to be held for the same county where the action was first tryed," ete. The time for bringing suit under this act had ended in December, 1694. It might be questioned whether this would apply liter- ally to the case of Elisha Cooke, as the judgment against him was ren- dered during, not since, the year 1686, and he had prosceuted an appeal in 1686. It is doubtful then if he could have elaimed a right of review under a literal interpretation of the aet. But it is evident that it was intended to permit a retrial of cases decided during the inter-charter period. Thus his plea for a hearing before the courts would have been stronger in 1694 than in 1695, in spirit if not in letter. To assume that he had a right of review in 1695 would mean that judgments rendered before the beginning of the year 1687 might be reviewed, while for judgments rendered later such review was forbidden. Moreover the preamble of the aet of December 11, 1693, as quoted above, assumed that a review of earlier judgments was not an existing right, but a privilege that could be enjoyed only by special grant, as by that act.
64 The aet of October 14, 1692, was disallowed in August. 1695. In October, 1697, another aet was passed requiring undisputed possession from October 1, 1692, until October 1, 1704, to confirm title. Prov. Aets and Resolves, i. 41, 299.
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Floyd petitioned the General Court convened at Boston, May 27, 1696. Several of the Justices of the County Court having de- clared that "by ye Lawes of this Province all such Actions are barred," they asked to be relieved in the premises, and enabled to review. The petition was read and agreed to by the Council on June 16, and by the House of Representatives the day following, but it did not receive the approval of the Lieutenant Governor necessary to its becoming a law.45 As William Stoughton, the acting Governor, had been a member of the lower court, which, May 3, 1684, ruled out the principal documents on which Cooke and his associates depended to defend their suit, and as he had been president also of the courts before which the actions of ejec- tione firmae in both the Suffolk and Middlesex County Courts had been brought by Nicholas Paige in 1686, he naturally hesitated to sign the bill, especially as the higher Court of Judicature in 1696 consisted of Stoughton, Danforth, Winthrop, Sewall, and Cooke.
65 In Provineial Acts and Resolves, vii. 117, the vote in answer to the petition of Elisha Cooke has been printed as ehap. xxvi. of the laws of that session; but on p. 507 the editor adds in a note: "It is not certain that the vote which constitutes this chapter received the approval of the Lieutenant-Governor, which was indispensable to its becoming a law. In the petition to the General Court in 1701, which is hereinafter printed in full, the petitioners declare that this 'bill ' was 'never perfected,' - a dcelaration which would scarcely have passed uncontradicted if it were not true. Still, since the vote remaining in the archives has all the eharae- teristics common to perfected votes and resolves, and was, moreover, re- corded by the Seeretary as having been passed, it has been deemed proper to include it here and to leave the question of its validity to be determined by other inquirers." The latter statement is based on the assumption that nothing was copied into the book of records of the General Court, from which this is drawn, that did not become a law. An examination of the book in question shows that this statement is not justified by the record. On the preceding day, June 15, two bills were entered which certainly did not become laws, as after each it is recorded that they were "read in Council, and Voted, a non concurrance." Examples could be multiplied to show that the book contains the daily legislative aetion of the Council, and is not solely a record of laws enacted. Six measures were voted by the Council on June 16 and seven on June 17. To twelve of these was appended the phrase " I eonsent, Wm Stoughton " or its equivalent. The vote on the petition of Cooke, Wiswall, and Floyd was the only vote to which this con- sent was not appended. The vote on this petition passed the Council on June 16, and was recorded under that date. According to the entry on the petition as preserved in the Archives, it was read twice in the House of Delegates on June 16, but was not passed by the lower house until June 17. On the same day the Licutenant-Governor adjourned the Court until the September following. There is no evidence to show that he gave his assent to the measure. See MSS. Records of the General Court, 1689-1698, p. 468; Mass. Archives, xvi. 519.
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Thus, although both houses voted in favor of granting the peti- tion, the General Court was adjourned on June 17, without the governor's signature having been obtained.
At the Inferior Court of Common Pleas which met at Boston the first Tuesday of July, Cooke obtained an alias excention against Muzzey on the judgment rendered two years before, the writ to be returned to the Court which should meet on the first Tuesday of January, 1696/7. The writ was dated November 9, 1696, and the return of the under-sheriff, John Waite, dated November 11, stated that Benjamin Muzzey had been lodged in the prison at Cam- bridge. Nothing further appears on the record of the Suffolk County Court. Whatever the settlement may have been, it did not apparently involve questioning the title of Nicholas Paige and his wife to the farm.66 Nor was any suit brought for this purpose
66 Suff. Early Court Files, No. 3385; also No. 4109. MSS. Rec. of the Court of Common Pleas for Suff. Co., 1692-1698, p. 147. On November 11, John Waite as undersheriff reported that he had placed Benjamin Muzzey in the gaol in Cambridge; and according to the writ the trial of the case was to come before the court which met on the first Tuesday of the follow- ing January. By writ dated Jannary 11, 1696/7, a snit was instituted by Muzzey against John Waite. The inventory of the estate of Benjamin Muzzey, Sr., filed at the Suffolk Probate Office April 28, 1691 (L. 8, f. 203), ou which Benjamin Muzzey based his assertion that he had on hand of his father's estate only one pound nine shillings six pence, did not represent the whole of the estate owned by the father at the time of his death. Two other inventories were drawn in May and July, 1691, and an agreement entered into by the heirs in the latter month. The reason for this as stated in the agreement was that the real estate, and the greater proportion of the personal property were " conveyed to one of ye abonsd Chilldren before his death, which was to ye dissattesfaction of ye rest of the sd Children." According to this agreement Alice, the widow, was to have one third of the movables, also one third of the homestead and one half of the house for life. Of the remainder, Benjamin Muzzey, as the eldest son, was to have a double portion, and Richard Muzzey and " John Waite who Maryed with Sary Muzzey " were to have single portions. Benj. Muzzey was to receive his portion in movables, and John Waite his in land, these amounting respectively to £85 9s 4d and £42 14s Sd. It was added that if the in- veutoried estate presented to the court was not sufficient to pay the debts of the deceased " so but yt the sd Admr be sued and putt to Charge thereby that then the rest of ye sd Children shall bare their Equall parts of sd Charge." On April 26, 1694, Waite gave bonds of £160 to Benj. Muzzey to pay Richard Muzzey £60 6s within a year, or to set off to him so much of the lands of Benjamin Muzzey, deceased. as that sum represented, and also to deliver to Benjamin Muzzey certain livestock. all the movable estate of Benj. Muzzey deceased in his hands, and an order on Capt. John Floyd for £24 in money. This was the bond on which Muzzey brought suit in January, 1696/7, Richard Muzzey assigning his right to Benjamin Muz- zey on January 12. The attachment was levied ou " one dwelling house and the land it stands one and about six aceres of Sallt madow and upland,"
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by Elisha Cooke until after the death of Acting-Governor Stough- ton (July 7, 1701). Thereafter the Council, of which Elisha Cooke was a member, stood in the Governor's place. Stoughton's death also left a vacancy on the bench. This was filled August 1, 1701, by advancing Wait Winthrop to the Chief Justiceship and appointing John Saffin to fill the vacancy. Three months later, in November, Cooke brought a suit " on review of a plea of tres- pass and ejectment " in this court of which, as has been said, he was himself a member, but was defeated. Sewall, also a mem- ber of the court, writes under date of November 19, 1701: "The Court gave Sentence that the Law for Reviews bars Mr. Cooke &c.
which Muzzey pointed out to the sheriff in Rumney Marsh. This deserip- tion tallies with the number of aeres taxed to Benj. Muzzey, Sr., and later to Widow Muzzey and John Waite. Joseph Hasey and Jaines Convers were witnesses to both the agreement and the bond, and James Convers testified to them in the Superior Court at Charlestown on January 27, 1696/7. It was also testified on January 27 that Benj. Muzzey had received in the summer of 1694 the livestoek and the household goods; Muzzey himself acknowledged receipt of the stoek and the payment of £24 from Floyd. Possibly a rumor of this agreement of April, 1694, led to the first proceed- ings of Cooke vs. Muzzey in June of the same year. At the Charlestown Court on the last Tuesday of January, Muzzey recovered judgment for £60 6s and eosts. The writ issued to the sheriff of Suffolk County Feb- ruary 2, 1696/7, returnable to the Superior Court of Judieature at Cam- bridge in July, was returned July 2, 1697, with the endorsement that he eould find neither estate nor person of John Waite to satisfy the execution. Thereupon another writ of execution was addressed to the sheriff of Mid- dlesex County on September 21, 1697, returnable on the last Tuesday in January next following. This execution was levied on land belonging to John Waite, Sr., in Malden. In connection with the return of the Suffolk sheriff, that he found no estate of John Waite, the following deed is of interest. On October 1, 1697, Benjamin and Sarah Muzzey of Cambridge conveyed to Colonel Nieholas Paige for £60 thirty aeres, "formerly be- longing to Benjamin Muzzey Senr Deed," consisting in orehard plowland, woodland and salt marsh at " Rumly Marsh." On July 10, 1699, Nieholas and Anna Paige conveyed title to this same piece of land, for £80, to John Waite. The first deed was recorded November 3, 1697, and the second was acknowledged August 20, 1702, and recorded July 1, 1721. Apparently Benjamin Muzzey was compelled to satisfy the execution obtained against him .by Cooke, and therefore enforeed against Richard Muzzey and John Waite the terms of the agreement of 1691, wherein provision was made for such an emergeney. Evidently a good understanding was maintained between Nieholas and Anna Paige and the family of Benjamin Muzzey. The title to the Paige farm did not become involved in this suit. The difficulties between Muzzey and Waite did not end in 1697. December 19, 1699, Muzzey gave Waite a release from all elaims or demands whatso- ever, but in 1703, sued him again on a bond dated Deeember 20, 1699. See Suff. Early Court Files, Nos. 3614, 5628, 5831, 2618; Suff. Deeds, L. 14, f. 443; L. 35, f. 163; Chamberlain MSS., iv. 31; supra, vol. i. p. 279,
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