USA > New York > Putnam County > History of Putnam County, New York : with biographical sketches of its prominent men > Part 19
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HISTORY OF PUTNAM COUNTY.
and underwoods and the ground and soil thereof hedges ditches fences mounds ways paths passages waters land covered with water watercourses liberties privileges easements profits com- modities advantages emoluments and appurtenances whatsoever to the said land and hereditaments released or intended so to be or any of them respectively belonging or in anywise apper- taining or accepted reputed redeemed taken known held oc- cupied or enjoyed as part parcel or member of the same or of any of them respectively and the reversion and reversions re- mainder and remainders yearly and other rents issues and pro- fits thereof and of every part thereof and all the Estate right title interest use trust inheritance term and terms for years and for life or lives property possession benefit and equity of re- demption claim and demand whatsoever at law or in equity of them the said Thomas Cowper Hincks and Joanna his wife Maria Morris and Henry Gage Morris and each and every of them respectively of in to and out of the same land and here- ditaments and every part thereof with the appurtenances and all deeds papers writings and muniments of title whatsoever relating to or in any wise concerning the same or any of them as are now in the custody possession or power of the said Thomas Cowper Hincks and Joanna his wife Maria Morris and Henry Gage Morris or any or either of them and they or any or either of them can or may obtain without suit at Law or in Equity To have and to hold the aforesaid tract of Land heredi- taments and all and singular other the premises herein before mentioned and described and hereby released or otherwise assured or intended so to be and every part and parcel of the same with their and every of their rights members and ap- purtenances subject nevertheless as aforesaid unto the said John Jacob Astor his heirs and assigns To the only proper use of the said John Jacob Astor his heirs and as- signs forever and to and for no other use trust intent or purpose whatsoever And the said Thomas Cowper Hincks doth hereby for himself his heirs executors and administrators and only as to and concerning the estate and interest of him the said Thomas Cowper Hincks and of the said Joanna Hincks his wife in the premises and his and her acts deeds and defaults only And the said Maria Morris doth hereby for herself her heirs executors and administrators and only as to and concern- ing her estate and interest in the premises and the acts deeds
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and defaults relating thereto And the said Henry Gage Morris doth hereby for himself his heirs executors and administrators and only as to and concerning the estate and interest of him the said Henry Gage Morris in the premises and his acts deeds and defaults relating thereto covenant promise and agree to and with the said John Jacob Astor his heirs and assigns that not- withstanding any act deed matter or thing whatsoever made done permitted or suffered to the contrary by them the said Thomas Cowper Hincks and Joanna his wife Mary Morris and Henry Gage Morris or any or either of them they the said Thomas Cowper Hincks and Joanna his wife Maria Morris and Henry Gage Morris now have in themselves good right full power and lawful and absolute authority by these Presents to grant release and confirm the said land and hereditaments here- by released or intended so to be and every part and parcel of the same with the appartenances unto and to the use of the said John Jacob Astor his heirs and assigns for ever in manner aforesaid and according to the true intent and meaning of these Presents and that free and clear and freely and clearly and ab- solutely acquitted exonerated released and discharged or other- wise by them the said Thomas Cowper Hincks and Joanna his wife Maria Morris and Henry Gage Morris their heirs executors or administrators at their some or one of their costs and charges in all things well and sufficiently protected defended saved harmless and kept indemnified of from and against all and all manner of former and other gifts grants feffments mortgages leases bargains sales jointures dower right and title of dower trusts Estates titles troubles charges leins and incumbrances whatsoever at any time or times heretofore and to be any time and from time hereafter had made done committed occasioned permitted or suffered by the said Thomas Cowper Hincks and Joanna his wife Maria Morris and Henry Gage Morris or any or either of them or any person or persons whomsoever rightfully claiming or to claim by from through under or in trust for them or any or either of them or by his their or any or either of their acts means consent default privity or procurement (The rents reserved in respect of the said premises only excepted) and moreover that they the said Thomas Cowper Hincks and Jo- anna his wife Mary Morris and Henry Gage Morris and their heirs and all persons whosoever lawfully or equitably and rightfully claiming or to claim any estate right title trust
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HISTORY OF PUTNAM COUNTY.
charge or interest at law or in equity of into or out of or upon the said land and hereditaments by from under or in trust for them (except as aforesaid) shall and will from time to time and at all times hereafter upon every reasonable request and at the costs and charges in all things of the said John Jacob Astor his heirs or assigns make do acknowledge levy suffer execute and perfect or cause or procure to be made done acknowledged levied suffered executed and perfected all such further and other lawful and reasonable acts deeds devices conveyances and assurances in the law whatsoever for the further better more perfectly absolutely or satisfactorily granting releasing confirm - ing or otherwise assuring the said land and hereditaments hereby released or otherwise assured or intended so to be and every part and parcel of the same with the appurtenances (subject as aforesaid) unto and to the use of the said John Jacob Astor his heirs and assigns for ever according to the true intent and meaning of these presents as by the said John Jacob Astor his heirs or assigns or his or their counsel learned in the law and resident in England shall be reasonably advised devised or required and be tendered to be made done and exe- cuted so as for the making or doing thereof they shall not re- spectively be required to go or travel from their respective usual place of abode.
"In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written.
"THOMAS COWPER HINCKS. (L. S.)
" JOANNA HINCKS. (L. S.)
"MARIA MORRIS. (L. S.)
"HENRY GAGE MORRIS. (L. S.)
" Signed sealed and delivered by the within named Thomas Cowper Hincks and Joanna his wife Maria Morris and Henry Gage Morris in the presence of us
"M. S. PARNTHER, London Street.
" RICHARD GROSE BURFOOT,
Same place."
After making this purchase, Astor sent an agent to notify the settlers of these lands of his purchase and claims, but no legal steps were taken by him until by the death of Mary Morris, in
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GENERAL HISTORY.
1825, his title acquired full force and power, and a suit was then begun in the United States Court.
The deeds which had been given by the commissioners of for- feitures were by law construed as full covenant warranty deeds, and the State was thus put under obligation to defend the suit which might be brought by Astor against any of the occupants of the lands, for ejectment. Accordingly an act was passed April 16th, 1827, " To extinguish the claim of John Jacob Astor and others, and to quiet the possession of certain lands in the counties of Putnam and Dutchess." By the provisions of this act it was agreed that if the United States Supreme Court should decide in favor of Astor's claim, that then the State should pay in extinguishment of the title the sum of $250,000 and if the court should decide that Astor was entitled to the lands with all the improvements, then the State should pay the sum of $450,000, and the act to be in force in case Astor and his asso- ciates should accept these terms in a formal manner, within the term of six months after its passage, and as a test of the claim, five suits in ejectment should be prosecuted to judgment in the Circuit Court of the United States, and the judgments presented by writs of error to the Supreme Court for final determination, and if any three of the five suits should be decided in the favor of Astor he should be entitled to the sum named, which should be paid in certificates of public stock.
These terms were not accepted and the case came to trial in the United States Circuit Court, in New York, November 7th, 1827. Suits were begun against James Carver, who was in pos- session of a farm on Lot 5, which was sold to his father, Tim- othy Carver, by the commissioners of forfeitures; Samnel Kelly, who held a farm on Lot 9, in the town of Southeast; and Na- thaniel Crane, who also lived on Lot 5.
The case, which attracted great attention, came to trial No- vember 7th, 1827. The following is the title of a printed report of the case, copies of which are extremely rare.
": Report of the Trial before Judges Thompson and Betts in the Circuit Court of the United States for the Southern Dis- trict of New York in the case of James Jackson ex dem. Theodosius Fowler and others vs James Carver including the claims of John Jacob Astor to lands in Putnam County with Arguments of Counsel and the charge of Judge Thompson by
13
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HISTORY OF PUTNAM COUNTY.
Edward V. Sparhawk reported to the N. Y. American New York 1827."
Of this report we present the following brief abstract:
" Circuit Court of the U. S. for the Southern District of N. Y.
"James Jackson ex dem. Theodosius Fowler Tho. Cowper Hincks and Joanna his wife Mary Morris and Henry Gage Morris os. James Carver.
"Counsel for Plaintiff, Messrs Oakley, Hoffman, Emmett, Platt, and Ogden. For Defendant Messrs Talcott Attorney Gen- eral, Webster, Van Buren, Ogden Hoffman and Cowls.
" The defendant confessed lease, entry and ouster. Mr. Oak- ley opened the case for Plaintiff.
" The Patent of Adolph Philipse was introduced in evidence, and the line of descent of the children of Mary Morris was shown.
"Col. Tho. Barclay, Witness, testified that he knew the fam- ily of Roger Morris. His children were Amherst, Joanna, Henry Gage, and Maria, who were all born before 1774. Joanna was 10 years old in 1774. Amherst was a lieutenant in the Royal Navy at the time of the peace in 1783. Henry Gage was 6 or 7 years old before the war. In 1783, he was 13 or 14 years old.
"Henry Livingston witness, was called to produce map and show location of premises. It was admitted that James Carver was in possession of farm in Lot No. 5.
"The Attorney General opened for the defence, and read the bill of Attainder against Roger Morris and his wife.
" Daniel Cole, Witness, testifies that he is 79 years old and that he and his father before him, were tenants on Lot No. 5 and held under Roger Morris.
"Beverly Robinson testifies that his grandfather, Beverly Robinson, died about 1795, that Timothy Carver was the father of James Carver the defendant. He purchased the farm1 of one Cheeseman, who had it from one Serrin.
"Barnabas Carver testifies that he is uncle to the defendant James Carver, and that Timothy Carver was his brother.
"Daniel Cole testifies that Timothy Carver bought the im- provement of the farm of one Cheeseman during the war, and that he built a log house there at the close of the war and
That is purchased the improvement of the farm from the former lessee.
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GENERAL HISTORY.
cleaved up more land, and he died three years ago. The ten- ants used to buy and sell among themselves before the war the improvements on the farms they held as tenants. Wm. Hill, James Rhodes and Hackaliah Merrit's father' bought land from Morris before the war.
"Enoch Crosby testifies that he has lived on the Patent 70 years. In 1782, he went to live on Lot 9, and there were about 150 families on Lots 5 and 9 before the war as tenants of Roger Morris.
"Isaac Hill testifies that he is 69, and has lived all his life on Lot 9. His brother Solomon died 12 years ago.
"Nicholas Agor says he is 58, and has lived on Lot 5 all his life his father lived there 70 years ago.
"Joseph Cole says he is 52 and lives on Lot 5 his father lived there before him and he bought the farm of his father in 1802 or 1803.
"Wm. Hill says that he lives on Lot 5 and about 20 years ago he sold a farm there. He bought of his father 30 years ago. He produced a deed from Roger Morris to Wm. Hill dated 1771, and says his sisters Betsy and Deborah live on the farm.
"Ebenezer Boyd says that he lives in Kent on Lot 5.
"Noah Hill says that he is 74, and never heard of Astor's claims till he sent an agent to notify settlers of his claims, 15 years ago.
"Judah Kelly says he lived on Lot 6, 46 years and never heard of Astor's claims.
"Tho. Lownsbury says he is 54, and has a farm on Lot 5.
"Benjamin Cole says he is 58, and owns a farm on Lot 5, which he had from his father, who had it from his father Elisha Cole. Says he has two brothers Levi and Joseph.
"Col. Tho. Barclay says that he knew Beverly Robinson, and that he lived in New York till 1764 or 5, and that he then went to the Highlands and lived there till 1779 and afterwards went to England. Roger Morris also had a cottage on his lands where he often went to look after his rents. He resided in New York and went to England in 1782.
" Hon. Egbert Benson, says that when returning from Con- gress in 1784 he stopped at the house of Gov. Wm. Livingston at Elizabethtown, and that he was shown by him the marriage settlement and deeds. He also says that he was a member of
1 Joseph Merritt.
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HISTORY OF PUTNAM COUNTY.
the Legislature and drew the bill of Attainder and at that time he had never heard of the marriage settlement.
" Josiah Ogden Hoffman was called to testify as to the hand- writing of Gov. Livingston.
" Egbert Benson and Henry Livingston were called as wit- nesses to prove that it was not customary to record leases, in cases of sale by lease and release.1
On Saturday, November 10th, Mr. Van Buren began sum- ming up for the defense and was followed by Mr. Webster. Mr. Ogden began summing up for the plaintiff and was followed by Mr. Emmett on Monday morning.
The charge was given to the jury by Judge Thompson, and the jury, after retiring for deliberation, returned a verdict for the plaintiff.
From this decision an appeal was taken to the Supreme Court of the United States. The case was duly considered by the venerable Chief Justice John Marshall, and his associate jus- tices, and the judgment sustained. As to the question whether the plaintiff should be requested to pay for the improvements made upon the lands, the court decided in the negative, stating " that the principle that a person should be required to pay for improvements made upon his land without his consent, is one that this Court is not prepared to admit."
While these cases were pending an act was passed " to revive and amend the Act to extinguish the claim of John Jacob Astor, and to quiet the possession of certain lands in Putnam and Dutchess Counties." This act, which was passed April 19th, 1828, revived the act of 1827, and allowed thirty days for the acceptance of the terms proposed in that act. It also made it the duty of the attorney general to obtain the decision of the Supreme Court as to whether the improvements on the lands were to be paid for, and provided that Astor and his associates should not be entitled to a verdict unless it could be shown that all the right and title of Mary Morris and her children was duly vested in Astor and the other claimants. The provisions of this act were accepted and an instrument for that purpose was duly executed, and in 1828 all the right, title and interest
1 Great stress was laid by the lawyers for the defense upon the fact, that although a lease for one whole year is mentioned in the trust deed of the mar- riage settlement of Mary Morris, yet it was not recorded, nor could the original be found.
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of Astor and his associates in the lands in question were duly transferred to the State by the following deed:
"This Indenture, made the first day of May in the year of our Lord one thousand eight hundred and twenty eight between John Jacob Astor, of Hoboken in the County of Bergen and State of New Jersey, Esquire, and Sarah his wife of the first part, Theodosius Fowler of Perth Amboy in the State of New Jersey Esquire and Maria his wife of the second part, Cad- wallader D. Colden, of the City of New York Esquire, and Maria his wife of the third part, Cornelius I. Bogert of the town of Jamaica in the county of Queens, and State of New York, Esquire, and Susannah his wife of the fourth part, and the People of the State of New York of the fifth part."
The deed, which is of great length, goes on to recite the facts that Mary Philipse was the original owner of the lands; that a deed of marriage settlement was made in 1758, which is given in full; that the marriage with Roger Morris was solemnized, and describing the various lots of land, showed their descent to the children of Mary Morris and their sale to John Jacob Astor, and mentioned the death of Roger Morris in 1795, and of his wife July 18th, 1825, and then proceeds as follows:
" And Whereas, by sundry mesne conveyances, the said Theodosius Fowler party hereto of the second part hath become and is now lawfully seized in and entitled in fee simple to two equal undivided fifth parts of one equal undivided eighth part of all the said lands tenements and hereditaments, with the ap- purtenances so as aforesaid granted and conveyed by the said Thomas Cowper Hincks and Johanna his wife Maria Morris and Henry Gage Morris to the said John Jacob Astor, And Where- as, the said Cadwallader D. Colden, party hereto of the third part, by sundry mesne conveyances, hath become and now is lawfully seized in and entitled in fee simple to one equal undivided half of one fifth of one eighth part of all the said lands tenements and heredita- ments with the appurtenances so as aforesaid granted and conveyed by the said Thomas Cowper Hincks and Johanna his wife Maria Morris and Henry Gage Morris, to the said John Jacob Astor, And Whereas the said Cornelius I. Bogert, party hereto of the fourth part by sundry mesne con- veyances, hath become and now is lawfully seized in and en- titled in fee simple to one equal undivided half of one fifth of
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HISTORY OF PUTNAM COUNTY.
one eighth of all the said lands, tenements and hereditaments with the appurtenances so as aforesaid granted and conveyed by the said Thomas Cowper Hincks and Johanna his wife, Maria Morris and Henry Gage Morris, to the said John Jacob Astor, And Whereas, the said John Jacob Astor, now holds and retains in fee simple three equal undivided quarter parts and one equal undivided eighth part and two equal undivided fifth parts of one eighth of the whole of the said lands, tenements, and hereditaments, with the appurtenances so as aforesaid granted and conveyed to him by the said Thomas Cowper Hincks and Johanna his wife, Maria Morris and Henry Gage Morris. Now this Indenture Witnesseth, that the said parties of the first, second, third and fourth parts respectively for and in consid- eration of ten dollars to them in hand paid, the receipt whereof is hereby acknowledged, and in compliance with the terms and provisions of the Act of the Legislature of the State of New York passed the sixteenth day of April, in the year one thous- and eight hundred and twenty-seven entitled " An Act to ex- tinguish the claim of John Jacob Astor and others, and to quiet the possession of certain lands in the counties of Putnam and Dutchess " and the act of the said Legislature passed the nine- teenth day of April in the year one thousand eight hundred and twenty-eight entitled "An Act to revive and amend an act entitled 'an act to extinguish the claim of John Jacob Astor and others, and to quiet the possession of certain lands in the counties of Putnam and Dutchess' passed April 16th, 1827." Have Granted, bargained, sold, aliened, released and conveyed and by these presents do grant, bargain, sell, alien, release and convey unto the people of the State of New York, and their suc- cessors and assigns forever, all those certain lands in the counties of Putnam and Dutchess, heretofore sold by the people of this State as forfeited by the attainder of Roger Morris and Mary his wife and which lands are more particularly described in a conveyance of marriage settlement made the fourteenth day of January, one thousand seven hundred and fifty-eight, by and between Mary Philipse of the first part Major Roger Morris of the second part and Johanna Philipse and Beverly Robinson of the third part, and recorded in the office of the Secretary of this State, on the eleventh day of April, seventeen hundred and eighty seven being the same instrument or deed of marriage settlement which is herein set forth and recited, as by reference
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to the boundaries and description of said lands in said deed of marriage settlement, will fully and at large appear. Together with all and singular, the houses, buildings, improvements, hereditaments and appurtenances thereto belonging or in any wise appertaining and also all the right, title, interest, estate, property, dower right or title of dower, claim and demand in Law of Equity of them the said parties of the first, second, third and fourth parts, or any or either of them of in or to the said lands or premises or any part thereof, with the appurte- nances, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof And Also all the right title, interest, claim and demand in Law of Equity, which now is or heretofore has been of the heirs children and issue of the said Roger Morris and his wife Mary, of in and to the land, tenements and prem- ises aforesaid subject nevertheless, to the power in the said deed of marriage settlement contained and reserved, whereby the said Roger Morris and Mary his wife, were authorized to sell and convey in fee simple any part of said lands, not exceeding in all the value of three thousand pounds, and excepting and reserving in this conveyance, the lands which were lawfully sold and conveyed by the said Roger Morris and Mary his wife, under and by virtue of said power, to have and to hold the said lands, tenements, hereditaments and premises hereby granted, with the appurtenances, unto the people of the State of New York and their successors and assigns, to the only proper use, benefit and behoof of the people of the state of New York, and their successors and assigns forever: And the said John Jacob Astor, as party hereto of the first part, the said Theodosius Fowler, as party hereto of the second part, the said Cadwalla- der D. Colden, as party hereto of the third part, and the said Cornelius I. Bogert, as party hereto of the fourth part, do severally and for their respective heirs, executors and adminis- trators, hereby covenant to and with the people of the State of New York, and their successors and assigns, that the above bargained premises, with the appurtenances in the quiet and peaceable possession and enjoyment of the people of the State of New York, and their successors and assigns against all and every person or persons, lawfully claiming or to claim, by, through, or under them the said John Jacob Astor, Theodosins Fowler, Cadwallader D. Colden and Cornelius I. Bogert, or any
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or either of them, they the said John Jacob Astor, Theodosius Fowler, Cadwallader D. Colden, and Cornelius I. Bogert and their respective heirs, executors and administrators shall and will warrant and forever defend, and the said John Jacob Astor, as party hereto of the first part, the said Theodosins Fowler, as party hereto of the second part, the said Cadwalla- der D. Colden, as party hereto of the third part, and the said Cornelius I. Bogert, as party hereto of the fourth part, do sev- erally and for their respective heirs and administrators, hereby covenant to and with the people of the State of New York, and their successors and assigns that they, the said John Jacob Astor, Theodosius Fowler, Cadwallader D. Colden and Cor- nelius I. Bogert, and their respective heirs, executors and ad- ministrators, shall and will forever warrant and defend, the people of the State of New York, and all and every person or persons who has or have derived, or who shall derive title from the people of this State, against any claim at Law or in equity of the heirs children and issue of Roger Morris and Mary his wife, and of every person, claiming or to claim under them or either of them of in or to the said premises, lands and tene- ments or any part thereof The covenants herein contained are to be deemed and construed as several and not joint, that is to say: each of the said John Jacob Astor, Theodosius Fowler, Cadwallader D. Colden and Cornelins I. Bogert, covenants for and in relation to his own share or proportion of said lands and premises and not for the other or others of them.
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