USA > Massachusetts > Middlesex County > Framingham > History of Framingham, Massachusetts, early known as Danforth's Farms, 1640-1880; with a genealogical register > Part 19
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The following paper, in the handwriting of Joseph Buckminster, Jr., and signed by some of the Salem End farmers, which was sent to the General Court, will show the grounds on which Buckminister claimed a right to convey the fee of these Neck lands, and has value in other respects: "The Petition of sundry of the inhabitants of Framingham, and settlers on the Neck of Land, so called, in said town - Sheweth
"That many of your Petitioners' ancestors settled on said Neck in the year 1693, under a Lease from Joseph White and Joseph Buckminster, who derived their titles from the Hon. Thomas Dan- forth, and that they and their heirs or assigns have been in peaceable possession of said lands ever since, and have been at great pains and cost to subdue them, which was then a howling wilderness, and much exposed to the Indian enemy : That on the 25th day of March 1699, the said Buckminster took a lease in his own name alone of the said Mr. Danforth of the same Lands and by the same bounds.
"That in the year 1706, the said Buckminster purchased the reversion in fee, of Mr. Danforth's heirs ; and in the year 1707, many of us and our predecessors purchased the fee of the said Buckminster; so that many of us have been in the peaceable possession of our lands more than 60 years, and others of us more than 40 years, without the least molestation.
"That a number of our neighbors who call themselves Proprietors, have petitioned this Honourable Court for a division of the Land in
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History of Framingham.
said Neck, which they say is all common, except 600 acres which the heirs of Mr. Danforth claim as theirs (tho' we deny it): So that between said heirs and those that call themselves Commoners, your petitioners are like to be stript of all they have in this world.
"Wherefore your poor petitioners humbly pray your Excellency and Honours would dismiss the Petition, and suffer us to take our chance for the whole of our estates at the common Law, which we cannot but think every English subject has a right to plead for ; or otherwise secure us in our ancient possessions, as your Honours in your wisdom shall see meet." [Mass. Archives, CXVI. 690.]
It is to be borne in mind, that the foregoing paper is Mr. Buckmin- ster's special plea.
But the "Proprietors of the Common Lands in Framingham," who had organized June 4, 1753 (and it would appear organized according to law), proceeded to divide such of the Neck lands as had not been sold by Col. Buckminster. Profiting by the experience of his father, soon to be narrated, and making a virtue of necessity, Joseph Buckminster, Jr., in order to protect his remaining interests, and to save the titles which his father had given, did, Sept. 8, 1758, in conjunction with the Salem End and other purchasers, enter into an agreement with the organized proprietors, by which their recorded division of the unappropriated commons (which appears to have been an equitable division) should be confirmed. And on petition of the parties in interest, the Legislature passed, Feb. 7, 1759, "An Act to confirm and render effectual an Agreement between sundry persons claiming Property and Interest in the Common and Undivided Lands in a Neck of Land in Framingham." By this act it was provided, " that all persons holding lands in the Neck aforesaid under any grants made by Joseph Buckminster, be quieted in the possession of the number of acres expressed in their original grants: that Joseph Buckminster release to the Proprietors of the Common Lands on the Neck all the right and interest that he now hath in said Neck: that the Division of the Lands on said Neck into lots, made by the Proprietors aforesaid, be confirmed; and that the Residue of the land there belonging to the Proprietors, be laid out into such Lots as may best accommodate the proposed division: that each Proprietor subscribing to said Agreement draw a share thereof in proportion to the number of acres mentioned in his original title deed or lease : that the owners of all the lands in Framingham leased by Thomas Danforth Esq. deceased, be considered as Proprietors of the Common Lands on the Neck aforesaid ; but the Lands in the Neck aforesaid, conveyed by Joseph Buckminster, shall not draw any share in the division of the Common aforesaid." [Mass. Perpetual Laws, in loc.]
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Neck or Common Lands.
The general division of the Common was into five ranges, as they were called. Two of these, called the First and Second River ranges, ran east and west parallel with and back from Hopkinton river. Two, called the First and Second Southborough line ranges, ran northerly and southerly on the west side of the common, next the town line. A fifth division, called the John Nurse range, included the lands lying west and north of the John Nurse homestead. This left a considerable tract in the central part. But whether this was reckoned the "600 acres " reserved by Mr. Danforth ; or whether it was embraced in what was termed the "Second division," as well as how this central part was finally disposed of, does not appear on the scanty records extant.
In the apportionment, the large estates in town, of course, drew large lots in these commons ; and the most of such proprietors continued to hold their lots as an investment, or for the family supply of wood. The smaller proprietors, especially the heirs of original grantees, and such as lived at inconvenient distances, and such as had removed from town, sold their lots to the Salem End farmers, and to farmers living in the easterly part of Southborough. A number of families immediately settled on their draught or purchased lots; and as the town records show, highways were laid out for their accommodation.
Mr. Barry says, "The organization of the Proprietors was dissolved about the year 1785; when the last of the lands (about 40 acres), near Wild Cat hill, were sold to John Parker. The proceeds of this sale were suitably appropriated to the purchase of a public library."
THE SIX HUNDRED ACRES ON NOBSCOT AND DOESKIN HILL. - In his lease to Buckminster, Mr Danforth reserved six hundred acres of land, "to be laid out adjoining to Sudbury line, containing Nobscot and Doeskin hill, to be laid out in one entire piece, and to bound southerly upon the path leading from Dea. Stone's mill to Marlbo- rough." In his will, Mr. Danforth directs how this reservation shall be disposed of.
Notwithstanding the fact that he held no title nor rights in this tract, except in so far as he had purchased of some of the Danforth heirs their undivided interest in said tract, and in the reversions and remainders of his leased lands, yet Col. Buckminster proceeded, as he did with the Neck lands, i. e., sold all the more valuable parts of the said 600 acres reservation. And to destroy evidence, and enable him in case of need to show that this reservation was situated in another place, he dug up and burned the marked tree which was commonly known as the southeast corner bound, and marked another tree standing nearly a mile away.
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History of Framingham.
On discovering the condition of things, and failing to secure an equitable adjustment, one of the Danforth heirs brought a suit of ejectment against one of the grantees holding under Buckminster ; which suit Buckminster, as warrantor, was obliged to defend ; and on trial, the jury decided adverse to Buckminster.
Other suits were then commenced, by the remaining heirs of Gov. Danforth, for the recovery of their rights, all of which were decided against Buckminster.
In this dilemma, Col. Buckminster appealed to the Legislature, in the following petition :
"To his Excellency William Shirley Esqr. Capt. Gen1 and Govern- our in Chief in and over His Majestys Province of the Massachusetts Bay aforesaid, to the Honbl His Majesty's Council and Honble House of Representatives in Gen1 Court Assembled the twenty sixth of May 1742 -
" Humbly Sheweth Joseph Buckminster of Framingham Esqr That the heirs of the Honbl Thomas Danforth Esqr late of Cambridge decd, are now pursuing a controversy with him and his tenants concerning a certain tract of land containing about six hundred acres at a place called Nobscot and Doeskin Hill in Said Town of Framingham, and now have Twenty Six actions-Depending concern- ing it. These Heirs are numerous and principally inhabit and dwell in Cambridge, and the towns set off from Cambridge vizt Newton & Lexington and by that means have had their kindred & neighbours strongly influenced by them upon the jurys in times past, and wholly undiscovered to many, and will again without some singular provision against it made.
" To the end thereof that your petitioner may have such jurymen as stand indifferent while they stand unsworn to try these clames which are beyond measure multiplied against him, he humbly prays the Order of this Court that the Jurors in the Tryal of this Title may not come from either of these Towns, but from other parts of the County more remote and out of the influence of the parties, that so, fair and impartial Justice may be done between them and your Petnr who, as in duty bound shall ever pray &c Jos BUCKMINSTER "
" In the House of Reprs June 16, 1742, Resolved that the Justices of the Supr Court give order to their Clerk that the - venires for Petit Jurors to such Towns in the County of Middlesex, and so many of them as shall be necessary to obtain a sufficient number of Jurors for the Tryal of the several causes that are or may be depending between said Buckminster and the heirs of Mr. Danforth respecting certain lands in Framingham, so that no Juror returned from Cambridge
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The Six Hundred Acres on Nobscot.
Newton Lexington or Framingham may be on the Tryal of said causes at the several Superior Courts in said County next coming where such causes are to be tryed ; (A) and that notice hereof be given to said Justices by said Buckminster : Sent up for concurrence.
T. CUSHING Spkr
" In council June 16 1742 Recd & non concurred, & ordered that this Petition be dismissed, for as much as the law for the better regulating the choice of Petit Jurors has made Sufficient Provision in the case within mentioned.
" Sent down for concurrence
J. WILLARD Secy
" In the House of Reptvs June 17, 1742 Read, and non concurd ; and the house adhere to their vote with the amendment at A.
" Sent up for concurrence T. CUSHING, Spkr
" In council, June 18, 1742 Read & concurred, J. WILLARD Secy Consented to W. SHIRLEY
"(A) Provided nevertheless that the said Jurors be chosen in the usual Method of drawing their names out of the Jurors Box, agreable to law." 1
But this extraordinary expedient did not avail. , The evidence of fraud on the part of Col. Buckminster was so plain, that in all the pending suits, judgment was rendered against him. And in his extremity, he appeals again to the Legislature. His petition, and the rejoinder thereto, contain all the facts in the case, as seen from the two sides thereof, and are here given in full, without comment. These papers, besides their relation to the case in hand, have great historical value, as bearing on other transactions and events connected with our early annals.
"To his excellency William Shirley Esqr Captain General & Gov- ernour in Chief. The honb' the Council & House of Representatives in Gen1 Court assembled at Boston 25 May 1743.
" The petition of Joseph Buckminster of Framingham Esqr against the Honbl Frans Foxcroft Esqr the Revd Thomas Foxcroft, the Revd John Whiting, Capt John Winchester, Mr Sam Sparhawk & Mr Dan1 Champney, heirs of the Honbl Thomas Danforth Esqr late of Cambridge deceased :
" Humbly Showeth, That ye Honbl Thomas Danforth Esqr having by the grant of the Massachusetts Colony, the most part of ye lands now called Framingham, in 1671 gave 150 acres of it to Andrew Belcher, bounded on John Stones land Southerly, on the path leading
1 Mass. Archives, XLII. 86, 87.
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History of Framingham.
from John Stones house to Marlborough the most southerly path northerly, and on his own land by marked trees easterly & westerly. And in 1693 he demised to Samuel Winch & Thomas Frost two messauges & 300 acres of land bounded on Sudbury line northerly, Capt Appleton and deacon Stones easterly and south-easterly, Mr Lynds (ye 150 acres above purchased of Andrew Belcher) Southerly, & his own land from Mr Lyndes north-west corner, straight to Sudbury line, westerly, for 999 years, with free commonage on the lands referred by the lessor to ly in common on Doeskin Hill. And in 1699 he by his indenture with the petitioner, reserving a certain neck of land to ly in common for the use of his own & the petrs tenants: Reserving also to Mellins & Collar certain medows on Sudbury River, and to his other farmers a highway to the neck; also 600 acres of land to be laid out adjoining to Sudbury line, containing Nobscot & Doeskin Hill, & bounding Southerly on the path from deacon Stones to Marlborough : also for the meeting house & minister 140 acres: All the rest of his lands at Framingham he demised to the petitioner for 999 years at a certain rent. Then he made his will, and after several devises & legacys gave his executors power to sell the rest of his estate & divide it equally among his children, grand children & great grand children, and died.
"That the petitioner for £300 in current silver money of New England in 1706 purchased of Hopestill Foster & Elizabeth his wife, one of Mr. Danforths grand children, their grant & confirmation of one half of all those lands in Framingham holden by him upon lease from Mr. Danforth, being bounded northerly by Sudbury line, westerly by Marlborough line, easterly by lands of Thomas Frost & Samuel Winch, by Sudbury river & lands of Mellens, Coller & the Whitneys, & Southerly by Sherborn line, and all their right in the moiety of ye said land & the reversions & remainders thereof ; To hold to him & his heirs with warranty against all men, alledging they had full right so to do; and afterwards for f1000 he purchased of the Revd. Mr Thomas Foxcroft, Samuel Sparhawk & John Sparhawk grand child & great grand children of the said Mr. Danforth, the like grants & confirmations for ye other moiety thereof :
"That in 1714 Francis Foxcroft Esqr & Daniel Champney execu- tors of the said Thos Danforth, made Joshua Hemenway & John Whitney their attorneys to join with the petitioner, & lay out the six hundred acres at Nobscot, without intruding on any of the tenants who enjoyed leases before 25 March 1699. Whereupon they with the petitioner laid out the west bounds of it from Sudbury line at the west end of Nobscot hill, running upon several courses, so as not to intrench upon the lands of John Shears (late Joseph Berry's) Stephen
The Six Hundred Acres on Nobscot. 177
Jennings (late William Brintnals) or George Walcup (late Ebenezer Winchesters), tenants that enjoyed their leases before 25 March 1699, down to Marlborough path ; and immediately registered their power of attorney in the County Registry.
" Afterwards in May 1735 Benjamin Gerrish & Martha his wife one of the grand children of ye said Thos Danforth, brought their writ of ejectment against the petitioner, Winchester, & Berry, for her 21 part of 600 acres of land bounded north on Sudbury line & south on Marlborough path & containing Nobscot Hill, under colour of ye devise aforesaid. The Superior Court in January appointed Ephraim Williams Esqr to survey & plat that 600 acres, mark out the de- fendants improvements, & make return thereof to the Court. This surveyor afterwards, thereupon reported, that he had fully heard the partys & their evidences, and platted the 600 acres, bounding east on the quit claim line & containing part of Winchesters & Berrys improvements ; Whereupon yr petitioner was obliged to go to trial for himself & tenants under most unreasonable disadvantage, and therefore lost.
" For this surveyor, though earnestly desired, would not represent in his return the facts & pretentions of ye petitioner, but set himself for a judge, upon hearing the partys & evidences, to determine which was the 600 acres, & plat it; which the court could not impower him to do. The design of a plat in trials is, to represent the matters of fact alledged on either side fairly, that each party may bring their evidences to support their respective pretentions ; to be judged of in a lawful trial. Whereas by this judicial act of Mr Williams, sinking all the evidences in his judgment, your petitioner was disabled upon the trial, either to avoid or overballance their evidences, which remained only in Mr. Williams' breast, & were sunk in his judgement ; & his cause was effectually prejudged thereby. Mr. Williams deter- mineth that this 600 acres, bounds east on the quit claim line; but there is nothing to ascertain that in the reserve or writ, which determines only the north & south sides & leaveth it intirely at descretion where or in what form the east & west end shall be, so that Nobscot hill be included: and it cannot help, to say the petitioner had quitted his claim of all eastward of that line to Winch & Frost, and therefore none of that ought to be taken into the 600 acres; for Mr. Danforth's reserve is superior to the petitioners quit- claim, & shall be answered without any regard to it. But if that would hinder it, much more shall his absolute deeds of bargain & sale to Winchester & Berry, that their land could not be taken into the 600 acres. Therefore there is no reason nor colour for this judicial act of Mr. Williams.
12
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History of Framingham.
" Moreover this judgement of Mr. Williams is certainly wrong, for the 600 acres reserved to be laid out, that was not done during Mr Danforths life, which naturally left it to the discretion of the Petitioner: yet he joined with Mr. Danforth's executors, and they by joint consent determined & bounded out the west end, which in effect was laying the whole out; the two sides being certain by the indenture. And it is not in the power of any man to depart from it, no, not of ye tenants and farmers for whose common use the indenture reserves it.
" Yet under the unjust influence of this partial survey & plat, other children, grand children & great grand-children of Mr Danforths, & some against their own deeds, have ever since been & still are loading your petitioner with their several actions, wherein upon the particular representation of ye petitioner's right, jurymen have sat playing by the hour without any attention to his cause, having the matter pre- judged by this survey & plat; and by this means have rooted out your petitioner's children & familys, & disperst them abroad from their settlements, & forced your petitioner at his advanced age of 77 years to part with his mansion House & all his demised lands of 900 acres of great value about it; while your petitioner is patiently waiting for justice' in the premises. And at this time yr petitioner hath two actions depending on review against him touching the premises, at ye next Superior Court in Cambridge : Ye suit of Capt. John Winchester, & two suits more upon appeals . . . . at sd Cambridge Court at ye suit of ye Honbl Fred Foxcroft & the Revd Mr Thos Foxcroft, & 12 more that are yet to be reviewed, which were first brought by ye said Fred Foxcroft, Thos Foxcroft, John Whiting, John Winchester, Sam1 Sparhawk & Daniel Champney. In all which he ought in justice & good conscience to have relief against this partial & unwarrentable return of Mr. Williams; which with great cost & vexation he hath long sought but cannot find at common law; & therefore that there be no failure of justice ought to have here.
" Now therefore your petitioner humbly prays the order of this great & gen' Court for some sufficient & indifferent surveyor by them named, to survey & plat the lands between Sudbury line & Marlbo- rough path from ye lands formerly, of Capt. Appleton & Deacon John Stone in the east, to the west end of ye 600 acres, platted by Mr. Williams in the west : with such boundaries of any particular parcell thereof or bordering thereupon as either party shall desire, each party to pay for so much as they shall direct the surveyor to do therein, & none of the actions aforesaid be tried till such surveyor returns his doings therein to ye court where ye said actions depend ; or otherwise to relieve yr petitioner, as to the justice & wisdom of this
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The Six Hundred Acres on Nobscot.
great & gen! Court shall seem fit. And your petitioner as in duty bound shall ever pray &c
Jos BUCKMINSTER JN° READ. "
In General Court, this petition was read. Ordered, that the pe- titioner serve notice on the adverse party, and a hearing be appointed.
"To his Excellency William Shirley Esqr., and to the Honble the Council & House of Representatives in General Court Assembled,
" Humbly shows Edmund Trowbridge attorney to the honble Fran- cis Foxcroft Esqr & Others, in answer to the petition of Joseph Buckminster Esqr, preferred to your excellcy & Honors the 25 of May I743.
" That the honble Thos Danforth Esqr being seized of the greatest part of the lands, which now are the Township of Framingham, in ye sixth of March 1672 gave one hundred & fifty acres thereof to Mr. Andrew Belcher, bounded on John Stones land southerly, the path leading from John Stones house to Marlborough, the most southerly path, northerly, and the lands of the said Danforth easterly & westerly, & also bounded the same by marked trees.
" And afterwards . . . the said Belcher, in consideration of forty two pounds silver money, conveyed the same to Coll" Buckminster.
" That on the 16th of March 1704, the Collll conveyed ninety acres thereof to Isaac Clark by the name of Lind's Land, and the said Clark holds the same to this day. . . That on the twenty fifth of March 1693 the said Danforth leased to Samuel Winch and Thomas Frost, two houses & 300 acres of land more or less, bounded on Sudbury line northerly; easterly on Appleton and Stones land; southerly on his own land & the said Lind's (now in posesssion of the said Clark); southerly & westerly on the said Danforth's own land; to run on a straight line from the north west corner of said Lind's land to Sudbury line; the said Danforth reserving to himself out of the said tract of land, Called three hundred acres, one hundred & fifty thereof near unto the easterly end of Doeskin Hill, to lie in one entire piece halfe a mile square, bounding northerly on Sudbury Line & the Easterly Bounds to be a tree, then jointly agreed upon and marked T. D. now to be seen.
" He also leased to them ten acres of the nearest medow, and also gave them privilege of Commonage on Doeskin Hill, to hold for nine hundred and ninety nine years, paying four pounds ten shillings silver money yearly to the said Danforth, for the rent of the premises.
" That in May 1693, the said Danforth leased all his other lands in Framingham, excepting a Neck, and sundry other tracts of land particularly mentioned, to Joseph White and the said Buckminster, to
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History of Framingham.
hold for nine hundred and ninety nine years, paying annually twenty two pounds like money; and 600 acres about Nobscott, alias Doeskin Hill was to lie in common. The land leased to them was above ten thousand acres, and they held it about six years, when, because the rent was so hard and the money so difficult to be got, the said White gave up his interest therein to Coll" Buckminster, he paying the rent arrears, being sixty pounds; and the said Buckminster applied to Mr Danforth for a new lease, and desired Mr. Danforth to take to himself the six hundred acres about Nobscott & Doeskin Hill, which by that lease made to White & Buckminster was to lie in common, & which Winch & Frost had a privilege of commonage in, for the rent arrear, & to give ye said Buckminster a lease in his own name; which the said Danforth refused to do, because Winch & Frost had a priviledge of comonage in the said six hundred acres; to remove which difficulty the said Buckminster then applied himself to the said Winch and Frost for their consent, and obtained it upon his promise, that they should each have forty acres of land about their further meadow, out of the land which should be leased to him by Mr Danforth; and the said Winch & Frost (taking only the said Buck- minster's word for the eighty acres aforesaid) gave their consent that Mr. Danforth should take the said six hundred acres at Nobscott and Doeskin Hill to himself, & relinquished their right of comonage therein.
" And on the 25th day of March 1699, the said Danforth made a new lease to the said Buckminster of his land in Framingham, before leased to the said White and Buckminster, making the same reserva- tion to himself as in the former lease; and also reserving to himself the said six hundred acres at Nobscott Hill, to be laid out in one intire piece adjoining tó Sudbury Line northerly, to contain Nobscott and Doeskin Hill, and to bound southerly on the path leading from Deacon Stone's Mill to Marlborough ; which 600 acres he accepted in satisfaction of the aforesaid sixty pounds rent arrear.
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