USA > North Carolina > Western North Carolina; a history, 1730-1913 > Part 13
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LANDS FOR SOLDIERS OF THE CONTINENTAL LINE. In 1783 (ch. 186) the following land was reserved for the soldiers and officers of the Continental line for three years : Beginning on the Virginia line where Cumberland river intersects the same; thence south fifty-five miles; thence west to the Tennessee river; thence down the Tennessee river to the Virginia line; thence with the Virginia line east to the beginning." This was a lordly domain, embracing Nashville and the Duck river country which was largely settled up by people from Buncombe county, including some of the Davidsons and General Thomas Love, who moved there about 1830. For it will be remembered that in the act of cession of the Ten- nessee territory it was expressly provided that in case the lands laid off for "the officers and soldiers of the Continental line" shall not "contain a sufficient quantity of lands for cultivation to make good the quota intended by law for each, such officer or soldier who shall fall short of his proportion shall make up the deficiency out of the lands of the ceded territory." But, while preference was given to the soldiers in these lands, they were not restricted to them, but could enter and get grants for any other land that was open for such purposes.
THE FOREHANDEDNESS OF CERTAIN OFFICERS. From Hart's "Formation of the Union," Sec. 51, we learn that although Congress had provided bounty lands for the soldiers of the Revolution, our officers demanded something better for them- selves; and, to appease them, Congress, on the 26th of April, 1778, had voted them half pay for life, as an essential measure for keeping the army together. This caused great dissatis- faction; but on the 10th of March, 1783, the so-called "New- burgh Address" appeared. This anonymous document urged the officers of the army not to separate until Congress had done justice to them; and on the 22d of March following,
-
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Washington used his influence to induce Congress to grant the officers full pay for the ensuing five years. This was done; but as the treasury was empty, certificates of indebt- edness were issued in lieu of cash. These certificates bore interest. But in June, 1783, 300 mutineers surrounded the place of meeting of Congress, and demanded a settlement of the back pay; and the executive council of Pennsylvania declined to disperse them. This caused Congress to leave Philadelphia forever.
REVOLUTIONARY PENSIONS. 10 On August 26, 1776, Con- gress promised, by a resolution, to the officers and soldiers of the army and navy who might be disabled in the service, a pension, to continue during the continuance of their disa- bilities; and on June 7, 1785, recommended that the several States should make provision for the army, navy and militia pensioners resident within them, to be reimbursed by Congress. On September 29, an act was passed providing that the mili- tary pensions which had been granted and paid by the States, respectively, in pursuance of the foregoing acts, to invalids who were wounded and disabled during the late war, should be paid by the United States from the fourth day of March, 1789, for the space of one year; and the act of March 26, 1790, appropriated $96,000.72 for paying pensions which may become due to invalids. The act of April 30, 1790, provides for one-half pay pensions to soldiers of the regular army dis- abled while in line of duty; and the act of July 16, 1790, pro- vides that the military pensions which have been granted and paid by the States respectively shall be continued and paid by the United States from the fourth of March, 1790, for the space of one year.
The first general act providing for the pensioning of all disabled in the actual service of the United States during the Revolutionary War was the act approved March 10, 1806, which was to remain in force but six years, but was subse- quently extended and kept in force by acts of April 25, 1812, May 15, 1820, February 4, 1822, and May 24, 1828. 11
LAND SPECULATION. Immediately after the formation of Buncombe the rush began, and large grants were issued to Stokely Donelson, Waightstill Avery, William Cathcart, David Allison and John Gray Blount, besides many others. The Flowery Garden tract on Pigeon was regarded as of the finest
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quality of land, and was granted to one of the McDowells. As the boundaries of the Cherokees were moved westward the same greed for land continued, and many large boundaries were entered, Robert and James R. Love of Waynesville hav- ing obtained tracts-those belonging to the Love speculation in 1865 containing in Haywood two hundred thousand, in Jackson fifty thousand, and one hundred and twenty-five thousand acres, in two tracts in Swain; a total of 375,000 acres in all.
ENLARGEMENT OF THE WESTERN BOUNDARY. 12 In 1783 (ch. 185) the western boundary was enlarged so as to take in all. lands south of the Virginia line and west of the Ten- nessee river to the Mississippi, then down that stream to the 35th parallel of north latitude; thence due east to the Appalachian mountains, and thence with them to the ridge between the French Broad and the Nollechucky [sic] river, and with that line till it strikes the line of the Indian Hunt- ing grounds, set forth in chapter 132 of the laws of 1778. This, however, was superceded by the Act of Cession, 1789, ch. 299, accepted by Congress, April 2, 1790, Vol. ii, p. 85, note on p. 455.
ENTRIES WEST OF THE MISSISSIPPI VOID. 13 It would seem that some of our enterprising citizens had been entering lands west of the Mississippi river at some time prior to 1783, for there is an act of that year (ch. 185) which declares that all entries of land heretofore made, or grants already obtained, or which may be hereafter obtained in consequence of the aforesaid entries of land, to the westward of the line last above described in this act are hereby declared to be null and void.
ENTRIES OF INDIAN LANDS VOID. 14 Section 5 of the act of 1783 (ch. 185) reserves certain of the lands to the Indians, which embrace part of the enlarged western boundary, with the Pigeon river as the eastern boundary, including the ridge between its waters and those of the Tuckaseegee river to the South Carolina line. All entries of such lands were void and all hunting and ranging of stock thereon were prohibited. But all other lands not reserved to the Indians were subject to entry; but at the price of five pounds per hundred acres.
ENTRY TAKER'S OFFICE CLOSED IN 1784. 15 By chapter 196 of the laws of 1784 North Carolina passed an act to remove
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all doubts as to the ceded territory of Tennessee by expressly retaining jurisdiction over it till Congress should accept it; but until Congress did accept it it was considered "just and right that no further entries of lands within the territory aforesaid should be allowed until the Congress [should] refuse the cession." Therefore, it closed the entry taker's office and declared void all entries made subsequent to the 25th of May, 1784, John Armstrong having been the entry-taker; except "such entries of lands as shall be made by the commissioners, agents and surveyors who extended the lines allotted to the Continental officers and soldiers, and the guards and hunters, chain-carriers and markers "who had alloted the lands to the soldiers." This, however, applied only to the ceded territory of Tennessee.
GRANTS TO JOHN GRAY BLOUNT AND DAVID ALLISON. Two of the largest grants of land West of the Blue Ridge were to John Gray Blount of Beaufort, North Carolina, and David Allison. The grant to Blount called for "320,640 acres and is dated November 29, 1796. 16 It began in the Swannanoa gap and ran to Flat creek, and thence to Swannanoa river and to its mouth; thence down the French Broad to the Painted Rock; thence to the Bald mountain, thence to Nolle- chucky river, or Toe, thence to Crabtree creek, and thence to the beginning. The grant to David Allison is for 250,240 acres and is dated November 29, 1796. 17 18 This land lies on Hominy creek, Mills and Davidson's rivers, Scott's creek, Big Pigeon and down it to Twelve-Mile creek to the French Broad and to the beginning. These lands were sold Septem- ber 19, 1798, by James Hughey, Sheriff of Buncombe, for the taxes of 1796, and were purchased by John Strother of Beaufort for £115, 15 shillings, and the Sheriff gave him a deed dated September 29, 1798.19 Strother sold some of these lands and made deeds to them, and in each deed he recited this Sheriff's deed as his source of title. 20 Strother was the friend and agent of John Gray Blount, and it is not clearly known why this large body of land was suffered to go on sale for the nonpayment of taxes, only to be bought in by the man whose duty it had been, presumably, to see that the taxes were paid. But it is certain that, on the 22d of November, 1806, Strother made his last will (describing him- self as of Buncombe county) and devised all of the lands he
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had received through Sheriff Hughey's deed as formerly be- longing to John Gray Blount to that gentleman, describing him as his "beloved friend." This will was admitted to pro- bate in Davidson County, Tennessee, March 1, 1816, and later on in Haywood and Madison counties, North Carolina. It was executed according to North Carolina laws of that date; but only one of the two subscribing witnesses to it was examined and he omitted to state that he had subscribed his name in the presence of the other subscribing witness. Chap- ter 52 of the Private Laws of 1885 validated this defective probate. The constitutionality of the act was questioned nev- ertheless, in Vanderbilt v. Johnston (141 N. C., p. 370) but upheld by the Supreme Court on the ground that only the heirs of Blount or Strother could object to the probate.
LOVE SPECULATION. After the death of Strother, Robert Love became the agent of the executors of J. G. Blount for the sale of these lands 21, but, on the 10th of December, 1834, these executors conveyed what was left of the Blount lands to Robert and James R. Love of Haywood county for $3,000. This deed, however, was not recorded till October 5, 1842, it having been probated by the late R. M. Henry, a subscribing witness, before Richmond M. Pearson, October 2, 1839, who for years was the Chief Justice of this State. 22
THE CATHCART GRANTS. Other large tracts were granted to William Cathcart in July, 1796, 33,280 at the head of Jona- than's creek, and covering Oconalufty and Tuckaseegee river; 49,920, on Tuckaseegee river and Cane creek, "passing Wain's sugar house in a sugar tree cove," 2' and a like acreage on Scott's and Cane creeks. Much of this lay west of the divide between the headwaters of Pigeon river and those of Tucka- seegee river in what is now Jackson, and which was not sub- ject to entry and grant in July, 1796, because it had been reserved to the Cherokee Indians by North Carolina by an act of 1783. (Sec. 2347, Code of N. C.) The State being the sovereign, the fee in such lands reverted to it whenever a new treaty with the Indians removed their boundary fur- ther west; which had happened by the treaty of Holston made in July, 1791 and that of Tellico, made afterwards. If Cath- cart had taken out a new grant to this part of the land after that treaty his title thereto would have been good. But he did not.
JAMES ROBERT LOVE.
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LATIMER V. POTEET. The question as to the validity of the Cathcart grant to land west of that divide came up in Lati- mer v. Poteet (14 Peters U. S. Reports, p. 4), in which it was decided that while there may have been doubt as to the loca- tion of the eastern line of the Cherokees subsequently known as the Meigs and Freeman line the parties to that treaty had the right to determine disputes as to its location and remove uncertainties and defects, and that private rights could not be interposed to prevent the exercise of that power; which was tantamount to saying that Cathcart's title to that part of the land was null.
BROWN V. BROWN. 24 But, as land grew more valuable on account of the timber on it, the same question was brought up in the State court when a grant was taken to a part of the land which had been granted to David Allison in November, 1796, and lay west of the reservation divide between Pigeon and Tuckaseegee. This land had been sold by the heirs of Robert Love, who held under the deed from Sheriff Hughey, of September 29, 1798. On the trial of the case in the Supe- rior Court, the judge held that the last grant was valid and that the original grant to Allison in 1796 was invalid. On appeal, great consternation was caused in the fall of 1888 by the decision of the Supreme Court (in Brown v. Brown, 103 N. C., p. 213) to the effect that all grants of land extending west of the "dividing ridge between the waters of Pigeon river and Tuck- aseegee river to the southern boundary of this State, were utterly void" (Code N. C., sections 2346-47) because when granted they were "within the boundary prescribed of the lands set apart to and for the Cherokee Indians." It was further held "that the treaty of Holston, concluded on the 2d day of July, 1791, between the United States and the Cherokee Indians, did not "extinguish the title and right of those Indians to the territory embracing the lands embraced by the grant in question"-that to David Allison, of date 29th November, 1796. Immediately there was a rush to enter and secure grants to all lands to which grants had been issued west of the divid- ing ridge between the Pigeon and the Tuckaseegee. Where would the effect of that decision reach? No one knew. But, on a petition for a rehearing, Chief Justice Merrimon discov- ered "among a vast number of very old uncurrent statutes" one (Acts 1784, 1 Pot. Rev., ch. 202) that required surveyors
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in the "eastern part of the State" to survey lands that any person or persons "have entered or may hereafter enter"; which was afterwards extended (Acts 1794, 1 Pot. Rev., ch. 422; Haywood's Manual, p. 188) to apply to "all lands in this State lying to the eastward of the line of the ceded territory," which was construed to mean "all the lands of this State not specially devoted to some particular purpose, and the impli- cation intended was that they should be subject to entry and survey just as were the lands mentioned in the statutes amended," it having been the purpose to embrace "the lands so acquired from the Cherokee Indians." Hence, the words, "lying to the eastward of the line of ceded territory"; this was the line separating this State from Tennessee which had been ceded to the United States in 1789; while the land ac- quired from the Indians by the treaty of Holston "lay imme- diately to the eastward of a part of that line." In the lan- guage of the chief justice, "it is fortunate that it has been discovered, as it rendered the land subject to entry and makes valid and sustains the grant in question, under which, no doubt, many excellent people derive title to their land." Upon the rehearing (106 N. C., 451) the Supreme court held that by an act of 1777 it was made lawful for any citizen of the State "to enter any lands not granted before the fourth of July, 1776, which have accrued or shall accrue to this State by treaty or conquest"; and that the title of the Indians to all lands east of the Holston treaty line were extinguished. This line had been fixed by the Meigs and Freeman survey, which location the State could not without breach of faith question; and the land in controversy, while lying west of the reservation of 1784, was east of the Meigs and Freeman sur- vey. This settled the dispute.
WAIGHTSTILL AVERY GRANTS. About 1785 Hon. Waight- still Avery of Burke took out "hundreds of grants," gener- ally for 640-acre tracts, covering almost the entire valley of North Toe river, from its source to somewhere below Toe- cane, there being, here and there, along the valley, some older grant wedged in between his tracts. He took out grants also for lands on most all of the tributaries of the North Toe, including the lower part of Squirrel creek, of Roaring creek, of Henson's creek and of Three-Mile creek 25 and also along the lower valley of South Toe and of Linville river, down to
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the Falls, and the upper valley of Pigeon in Haywood county and of Mills river in Henderson and Transylvania. . . William Cathcart took out in 1795 two large grants, one known as the "99,000-Acre Tract," and the other as the "59,000-Acre Tract," which two large boundaries covered practically all of Mitchell county and of Avery county, except some tracts along the Blue Ridge. . " 26 They also covered about all that had been previously granted to Waigh- still Avery. For the litigation that subsequently ensued see "Cranberry Mine" under chapter on "Mines and Mining." Many grants were also made to William Lenoir and others.
CHEROKEE LANDS. By the act of 181927 no portion of the lands recently acquired from the Cherokees was required to be surveyed except such that, in the opinion of the commis- sioners appointed for that purpose, would sell for fifty cents per acre and over, while the rest was reserved for future dis- position to be made by a subsequent legislature, and the act of 1826 required such lands to be classified into three tracts, as we have already seen. This was to be sold at auction, and in the meantime, no land not subject to survey-that is not worth fifty cents an acre or more-was subject to entry. But by the act of 1835 28 all such lands as were not worth fifty cents an acre were made subject to entry. Under the law of 1836 29 the Cherokee lands were required to be laid off into districts, which were to be numbered, and divided into tracts of from fifty to four hundred acres each, the first class of which was to be sold at auction for not less than $4 per acre, the second class for not less than $2, the third class for not less than $1, the fourth class for not less than fifty cents, and the fifth class for not less than 25 cents per acre. All the rest of the Cherokee lands which were not considered by the com- missioners to be worth at auction more than 20 cents per acre were subject to entry. The surveyors were to note all the mines, mill sites, etc., on each tract, and three maps were to be made, showing the lands surveyed and the "vacant and unsurveyed lands," one of which was to be deposited in the office of the governor, another in the office of the secretary of state at Raleigh, and the third in the office of the register of deeds in Franklin, Macon county.
ACT FOR THE RELIEF OF PURCHASERS OF LANDS. Under this act of'1836 several purchasers found that they could not
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pay for the lands bid in by them at the auction sales, and in 1844-45 another act was passed providing that such persons might surrender such lands, after which the lands were to be reassessed by commissioners, when they could be repur- chased by the former bidders at the new valuation by giving bonds with good security, if they so desired, and if not, then they could be sold at the new valuation to anyone. This law also provided for the sale of such lands as had not been sold at all under the first appraisement of their value, and for the relief of such poor and homeless people as had settled on the less valuable lands and had made improvements thereon in the hope of being able to pay for them at some future time and had been unable to do so, as well as for insolvent people who had been unable to pay for lands they had bought. New valuations were to be made and certificates given to such persons, which certificates gave them preemption rights for the purchase of such lands upon giving good bonds for the payment of the purchase price. Much of the best lands were subse- quently held under these "Occupation Tracts," they having the refusal of the lands they had settled on and improved.
FLOATING ENTRIES. Such entries were those which stated in the entry that land beginning on a natural object in a certain district had been entered but, without further description, they were void against enterers whose surveys covered it.
NOTES.
1Potter's Revisal, p. 275. "Ibid., p. 280.
"Melton v. Munday, (64 N. C. Rep., p. 295); Waugh .. Richardson, 8 Ired Law, (30 N. C.,
p. 470).
"Potter's Revisal, p. 463.
+2 Vol. Rev. St. 1837, p. 201.
"Ibid., pp. 210-11.
"Potter's Revisal, p. 280.
"Ibid., p. 355.
"Potter's Revisal, p. 356.
10Potter's Revisal, p. 442.
11From "Dropped Stitches", pp. 71-72.
1ªPotter's Revisal, p. 435.
1ªIbid., p. 456.
14Ibid., p. 436.
1"Potter's Revisal, p. 457.
16Book No. 4, p. 230.
17Book 2, p. 458.
1843,534 acres already granted are excepted from this boundary.
1ºBook 4, p. 230.
"The lands embraced in this sale aggregated one million and seventy-four thousand acres. The tax title stood all tests. Love v. Wilbourn, 5 Ired., N. C. Rep., p. 344. 11Will Book E, p. 42.
"Book 22, p. 88.
"Book 22, p. 393.
"Daniel Webster represented the defendant in this case, and Chief Justice Roger B. Taney filed a dissenting opinion.
"So called because it is almost exactly three miles in length.
"From letter of December 5, 1912, from Hon. A. C. Avery to J. P. A.
""Rev. St. 1837, Vol. II, p. 190.
"Ibid., p. 209.
"Ibid., p. 210.
NOTE : For Forge Bounty grants see ch. 293, laws 1788, Potter's Revisal, p. 592.
CHAPTER VIII
COUNTY HISTORY
BUNCOMBE COUNTY. 1 In 1781 or 1782 settlers from the blockhouse at Old Fort, McDowell county as it is now, crossed the mountains to the head of the Swannanoa river, and became trespassers on the Cherokee territory, the Blue Ridge at that time being the boundary line. Samuel Davidson, his wife and child were among the first. They brought a female negro slave with them, and settled a short distance east of Gudger's ford of Swannanoa river, and near what is now Azalia. He was soon afterwards killed by Indians, and his wife and child and slave hurried through the mountains back to Old Fort. An expedition to avenge his death set out, with the late Major Ben. Burgin, who died at Old Fort in November, 1874, at the age of ninety-five, among the number and conquered the Indians at the mouth of Rock House creek. By this time, however, several other settlements had been effected on the Swannanoa from its head to its mouth by the Alex- anders, Davidsons, Smiths and others, the earliest being about the mouth of Bee Tree creek, a little above this being the Edmundson field, the first cleared in Buncombe. Soon an- other company passed through Bull gap and settled on upper Reems creek, while still others came in by way of what is now Yancey county and settled on lower Reems and Flat creeks. Some of the people who had been with Sevier at Watauga settlement settled on the French Broad above the mouth of Swannanoa, and on Hominy creek. Some from South Carolina settled still higher on the French Broad.
THE CHEERY NAME OF BUNCOMBE. ? The Swannanoa was now recognized as the dividing line between Burke and Ruth- erford counties, from portions of which counties Buncombe was subsequently formed, and named for Edward Buncombe, who had been a colonel in the Revolutionary War.3 In 1791 David Vance and William Davidson, the former representing Burke and the latter Rutherford, agreed upon the formation of a new county from portions of both these counties west of the Blue Ridge, its western boundary to be the Tennessee line.
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FIRST COURT AT THE GUM SPRING. " In April, 1792, at the residence of Col. William Davidson on the south bank of the Swannanoa, half a mile above its mouth, subsequently called the Gum Spring place, Buncombe county was organized, pur- suant to the act which had been ratified January 14, 1792. On December 31, 1792, another act recited that the com- missioners provided for in the first act had failed to fix "the center and agree where public buildings" should be erected, and appointed Joshua Inglish, Archibald Neill, James Wilson, Augustin Shote, George Baker and John Dillard of Buncombe, and Wm. Morrison of Burke, commissioners, in place of Phil- lip Hoodenpile, William Brittain, Wm. Whitson, James Brit- tain and Lemuel Clayton, who had failed to agree, to select a county seat. There was rivalry for this position, many contending for the "Steam Saw Mill Place on the road after- wards known as the Buncombe Turnpike Road about three miles south of Asheville, where Dr. J. F. E. Hardy re- sided at the time of his death," says Dr. Sondley in his Asheville's Centenary. They selected the present site, which at first was called Morristown. As the Superior Court was at this time held at Morganton, five men from Buncombe were required to serve there as jurors, for the July term, 1792. These were Matthew Patton, Wm. Davidson, David Vance, Lambert Clayton and James Brittain. The first court house stood in the middle of the street upon the public square at the head of what is now Patton avenue, and was of logs. The first county court held there was on the third Mon- day in July,1793. In January, 1796, commissioners were ap- pointed to lay off a plan for public buildings; but in April, 1802, the grand jury complained that the county had no title to the land on which the jail, etc., stood, and in April, 1805, steps were taken to secure land for a public square. In April, 1807, the county trustee, or treasurer, was ordered to pay Robert Love one pound for registering five deeds made by individuals for a public square. . The next court house was made of brick, a little further east, in the erection of which the late Nicholas W. Woodfin, while a poor boy, carried brick and mortar. This gave way to a handsome · brick building fronting on Main street, which was destroyed by fire on the 26th day of January, 1865. Some years later a small one-story brick structure was built nearly in front
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