USA > Ohio > Franklin County > Columbus > History of the city of Columbus, capital of Ohio, Volume I > Part 84
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Certain persons claiming to be the heirs of Hugh Stephenson by a proceeding instituted in the United States District Court, disputed the title of Lucas Sullivant
41
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HISTORY OF THE CITY OF COLUMBUS.
to survey 2668. The suit was dismissed in 1822. In 1838, James Stephenson and others made a second attack on the title of the same premises in the Court of Common Pleas of this county against the three sons of Lucas Sullivant. Their bill in equity recited that Hugh Stephenson, a colonel in the Virginia line on con- tinental establishment, was entitled to 6,6663 acres of land in the Virginia Military District, and that he died leaving a wife and a posthumous child, Richard Stephen- son, his only heir at law ; that Richard Stephenson died without issue, leaving no heirs excepting his fraternal uncles; that certain illegitimate children of Hugh Stephenson assumed control of his warrant and assigned it to Sullivant, who located the same and obtained a patent for the land in question. The bill further charged that Sullivant fraudulently obtained an assignment of the plats and certifi- cates for the land in question and procured patents therefor in his name. The prayer was that the defendants be required to convey the land to the plaintiffs and account for lands sold. The bill was dismissed in 1840, without prejudice, at the complainant's costs, and the title has not since been questioned.
The title to three hundred acres of land in the third quarter of Clinton Town- ship was in question in the case of Lessee of Moore v. Vance.59 An action in ejectment was brought to oust Joseph Vance, who had purchased from his brother Alexander, by whom the premises had been purchased from Jonathan Dayton through Dayton's attorney in fact, Joseph Vance. Dayton had also executed a power of attorney to one Bonham, authorizing him to sell the lands to Moore ; the lands were conveyed to Moore by such attorney. The deed to Alexander Vance was acknowledged and recorded but was not witnessed. The acknowledgment was made outside of the Northwest Territory but inside of the United States, and was taken by J. C. Symmes, a judge of the Territory. The court held that as the law then existed witnesses were not necessary and that the deed conveyed the title to Alexander Vance.
After the Penitentiary was removed to its present site the tenacre lot set apart by the original proprietors of Columbus became the subject of litigation. It was contended on the one hand that the lot reverted to the original proprietors or their heirs, and on the other that the title remained in the State. An action in ejectment was brought March 26, 1847, against Edward N. Slocum, Quartermaster- General, to recover possession of the property.60 The suit was brought in the name of Gustavus Swan and M. J. Gilbert. Elijah Backus appeared as attorney, and it was generally understood that he was prosecuting for his own benefit. A default judgment was rendered in favor of the plaintiffs in 1851. On September 26, 1854, the State brought an action in ejectment to regain possession of the lot. Two years later judgment was rendered in its favor. Under an act of March 17, 1856, the premises were replatted, appraised and sold.
Although the early suits involved the title to large tracts of land, their value at the time the suits were instituted was less than that of some of the lands which have recently been and are still in litigation. In 1890 a number of cases were brought in the Court of Common Pleas by the heirs of John Brickell for an accounting of rents and profits and the partition of a tract of seven and a half acres of land extending northward from Spruce Street, between High and Park
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streets. John Brickell died in 1844. By his will he gave his wife what the law allowed her; to his daughter Susan five hundred and fifty dollars; to his grand- daughter Evaline, four hundred dollars. These legacies were to be paid as soon as his executor could, in his opinion, without sacrifice, convert any part of the testator's estate into money for that purpose. He also beqneathed to his son McLean ten dollars. After bequeathing the premises then occupied by his son John to him he further gave and bequeathed to him the undivided moiety in the rest and residue of his real estate, to have and to hold during his natural life, but to be equally divided among his lawfully begotten children living at the time of his death. The undivided half of seven and a half acres of a twentyacre tract in Clin- ton Township, and of a lot near the Penitentiary, passed to John Brickell, Junior, under this item of his will. The sixth and eighth items are as follows :
Sixthly -Should my son John think proper to remove from this quarter of the country he may sell in fee his moiety of said residue of my real estate, provided he shall vest the proceeds in other land in the name and for the use of his children, he, my said son John, retaining and holding to his use for life the rents and profits of said land so to be purchased, and the purchasers of said moiety of said residue to be answerable for the appropriation of the money in manner aforesaid.
Eighthly - All the rest and residue of my property, choses in action, notes of hand, money and everything else not above disposed of I give in equal proportions to my daughter Evaline, my granddaughter Susan and my sons Cyrus and John, to be divided between them share and share alike.
Alexander Patton was named as executor. He qualified as such soon after Brickell's death and fully administered his estate. On September 10, 1845, Cyrus Brickell conveyed his interest in the seven and a half acres to Lincoln Goodale for $750 00, and on September 24, 1845, John sold his half in the same premises to Goodale for $650. His deed recited that he was about to move from this part of the country and that after the debts of his father and the legacies mentioned in the will were paid from the proceeds of the sale, the residue was to be invested in lands in the name of his children and for their use and benefit after his death, agreeably to the will of his father. The Brickell heirs assert that at the time John Brickell sold to Goodale he had not thought " proper to remove to another quarter of the country," had no intention of so doing, and did not in fact so remove until in October, 1851. They allege that neither he nor Goodale invested the proceeds arising from the sale of the seven and a half acres in other lands in the name of John's children, and that Goodale acquired by his purchase from John only his life interest in the tract. The defendants claiming under Goodale interposed a number of defenses. In the Court of Common Pleas all the cases tried were determined against the claimant heirs. Twentytwo of the cases were recently disposed of in the Circuit Court. The facts found by that court were substantially as follows :
At the time of his death John Brickell knew the amount of his debts and liabilities and the condition of his real and personal property. His personal estate was inadequate to pay in full his debts and liabilities, the legacies mentioned in his will, the year's allowance to his widow, her distributive share in his personal property and thecosts of administration. His personal estate was not sufficient to
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HISTORY OF THE CITY OF COLUMBUS.
pay the legacies or either of them. The testator owned no real estate other than the three tracts above mentioned. By proceedings instituted in October, 1844, the widow's dower in all of the three tracts above mentioned was assigned her in the tract near the Penitentiary, and on November 3, 1846, was of the value of $480. Cyrus Brickell, on September 10, 1845, conveyed to Goodale his undivided half of the seven and a half acres. Soon after John Brickell's conveyance to Goodale he disposed of the lands specifically devised to him to John M. Walcutt. John and Cyrus conveyed their respective interests in the lot near the Penitentiary also to Walcutt and sold the Clinton Township land to Windsor Atcheson. In pursuance of an agreement made at or about the time John Brickell sold to Goodale, and as further assurance of the title of Goodale to the undivided half of the land conveyed to him by John Brickell, and to effectuate the object of the testator in respect to the title to the premises and secure the payment in full of the legacies mentioned in the will, Patton, as executor, executed and delivered a deed to Goodale for the undivided half of the seven and a half acre tract, in consideration of the placing in the hands of the executor of so much of the proceeds of the sale as would, with the proceeds of the sale to Atcheson, fully pay onehalf of the legacies. The legacies were intended to be and were charged upon the lands sold to Goodale and Atcheson. Cyrus Brickell at the same time, from the proceeds of sales made by him, placed sufficient sums in the hands of the executor to pay the remaining half of the legacies. The entire proceeds of the sale of the seven and a half acre tract were applied by the executor in payment of legacies, and by John Brickell in the purchase of land in Mifflin Township, to himself for life with the remainder to his children. This was done with the consent and knowledge of Cyrus, John, Susan and Evaline Brickell. The receipt of Evaline and Susan Brickell for their legacies, given when they were of full age, are on file in the Probate Court. The testator intended to confer on his executor the power to sell and convey any of his residuary estate for the payment of the legacies.
At the time John Brickell conveyed to J. M. Walcutt the homestead devised to him by his father, and he and his brother Cyrus conveyed to Walcutt the bal- ance of the Penitentiary lot, which conveyance was subject to their mother's dower, Walcutt conveyed to John in fee twoeighths, and to his children in fee, subject to his life estate, threeeighths of the 283 acres in Mifflin Township. At the same time, in consideration of $2,625 paid Cyrus Brickell, Walcutt conveyed to him in fee the remainder of the undivided threeeights of the Mifflin Township land. The unpaid purchase money on the 283 acres, amounting to $1,000, was paid by John and Cyrus Brickell in equal proportions. At the same time they gave to Walcutt a mortgage to indemnify them against the dower interest of their mother in the Penitentiary lot.
John Brickell removed in 1846, with his family, to Mifflin Township, about eight miles from Columbus, and in 1881 removed to Iowa. He died February 2, 1890. Prior thereto his children had all died unmarried, childless and intestate. In 1848 the Mifflin Township lands were partitioned, and 117 acres and twentyone poles were set off to the children of John Brickell. In the proceeding of Andrus, administrator, against Stickel and others, No. 7830, in the Court of Common Pleas
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of Franklin County, the Brickell heirs, by virtue of the investments made by John Brickell in pursuance of his father's will, were awarded the lands which had been set off to John Brickell's children in 1848. The persons now in possession and those under whom they claim, from and including Goodale, have been in open, notorious, continuous, uninterrupted, exclusive and adverse possession of the premises claimed by them respectively since December 24, 1845, and each and all of them have claimed and believed themselves at all times to be the absolute owners of the whole of their respective premises. Since 1845 the premises have been frequently conveyed and transferred by general warranty deeds, all of which are matters of record in the office of the Franklin County Recorder. The premises were platted and subdivided by Goodale, and permanent and valuable improve- ments have been erected on nearly all the lots. By proceedings in the Common Pleas Court Goodale, after platting the premises, vaeated some of the streets and alleys, and after his death his executors, fully empowered so to do, caused an amended plat of the premises to be made, and in exercise of the powers conferred on them by his will sold the lots therein to divers persons by deeds of general warranty. The present owners and those under whom they claim have exercised full, exclusive and absolute ownership over the premises since the purchase by Goodale from John and Cyrus Briekell, and took the premises claimed by them respectively without any notice, knowledge or information of the claims asserted by the Brickell heirs, except such as was given by the records of Franklin County. The Brickell heirs knew of the improvements being made on the premises, and that the persons in possession thereof were exercising acts of ownership over the same, yet made no claim of title to or interest in said premises until the year 1888. Cyrus Brickell also had full knowledge of all the facts connected with the sale of the several parcels of real estate and the parts thereof mentioned in his father's will, and the application and use of the purchase money arising therefrom to the payment of the legacies, to the purchase of the Mifflin Township lands, and of all the matters related to or connected with the same, and participated and acquiesced therein. He participated by the execution of his own deed in the transaction between himself, his brother John, Goodale and Alexander Patton as executor whereby Goodale became vested with the title to the seven and a half acres. In 1846 John Brickell executed and delivered to Evaline Brickell a mortgage deed on his undivided twoeighths interest in the Mifflin Township land, which mortgage was canceled and satisfied by her. The legatees named in the will accepted pay- ments of their legacies with notice of all the facts and transactions above men- tioned, and of the fact that Goodale had seen that the purchase money of the seven and a half acres was used by the executor in the payment of legacies and by John Brickell in the purchase of the lands in Mifflin Township to himself for life with remainder to bis children.
The court thereupon found that none of the Brickell heirs have any right, title or interest in or to the premises in controversy and that they are not entitled to any relief whatever. The property involved is worth several hundred thousand dollars. The cases will be taken to the Supreme Court.
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HISTORY OF THE CITY OF COLUMBUS.
Another suit affecting a large tract of land is that brought by Peter Ramlow and about eightyfive others against John Ream, Senior, and others, and known on the docket of the Court of Common Pleas as number 23,582. William Simmons was during his lifetime the owner of a seventyfour acre tract of land in what is now known as North Columbus. He died leaving ten children, one of whom, named Nancy, intermarried with John Ream, who purchased the interest of one of the Simmons heirs in the tract and, on January 11, 1827, together with his wife, Nancy Ream, for an adequate consideration, as the plaintiffs claimed, conveyed to David Beers their interest in the tract by a quitclaim deed. The petitioners recite that the deed was duly signed, sealed, witnessed and delivered and was acknow- ledged before a justice of the peace of Licking County, but that throngh mistake the justice failed to state in the certificate of acknowledgment that Nancy Ream, the owner in fee simple of a part of the premises conveyed, was examined separate and apart from her husband. They further allege that if she was not so examined it was through mistake, as she did in fact voluntarily and freely, for a valuable and adequate consideration, execute, acknowledge and deliver the deed. The prayer of the petition is for the correction of the deed and for all other proper relief. The premises have been platted into lots, streets and alleys and constitute a part of North Columbus. Nancy Ream died in 1881. Several of the heirs filed a voluminons answer and crosspetition reciting numerous conveyances and denying that the deed to Beers was the deed of John and Nancy Ream. They assert that these parties never agreed to convey their interest in the premises, that they received no considera- tion for the same, that Nancy Ream was not examined separate and apart from her husband by any one authorized to take the acknowledgment of deeds, and that the deed was delivered to Beers through a brother of hers to defraud her and her hus- band. They also base their claim to a part of the tract on a deed executed by Anna Furby, formerly the widow of William Simmons, who, without her husband joining her, executed a deed in 1825 for her interest in the premises. She died in 1836. There are other claims made, but the pleading is too lengthy to be fully abstracted here. The cross-petitioners assert that if the deed of Ream and wife be valid it only conveyed onetenth of the premises, and pray for a parti- tion of the same. They ask that some ninety other persons be made parties to the suit, and claim to be tenants in common with such persons and the petitioners. The plaintiffs reply denying the material averments of the answer and cross- petition and plead the statute of limitations. The case was determined adversely to the Ream heirs in the Court of Common Pleas, and is now pending in the Circuit Conrt.
The case of Edmiston Gwynne and others, heirs of Doctor Ichabod G. Jones, against James K. Jones and others, owners of a twoacre tract in Nelson's Addi- tion, was recently disposed of in the Circuit Court. When the Friend (Main) Street Railway was projected the trustees under the will of Doctor Jones agreed that if the road were constructed they would donate two acres to the Company. When the road was completed the trustees executed and delivered a quitclaim deed to the Company for the nominal consideration of one dollar. The Company sold the lands to James Nelson for $1,800. Nelson, who had previously purchased and platted the remainder of the fifty acres, then made a new subdivision of the whole
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tract. The twoacre traet included a number of lots and parts of lots. The Jones heirs brought an action to partition the premises and to quiet the title. The suit involved the question as to the right of the trustees to make such a conveyance. The case was never heard on the issues raised by the pleading, but was satisfac- torily adjusted by the parties and a decree entered for the defendants.
Space forbids extended notice of other suits. The case brought by the execu- tors of Harriet E. Ide against Julia B. Clarke and others affected but few people although it involved a large amount of real and personal property and presented some interesting legal questions. The same is true of the ease of Mary R. English and others against William Monypenny and others. This case is still pending. A very recent case is that brought by Mary E. Fisher to recover possession of prem- ises fronting on the south side of West Ninth Avenue between High and Hunter streets. We have been unable to find a single case involving the title to any con- siderable amount of property and affeeting a large number of owners which has finally been determined against the defending parties.
In a historical sketch like this only a few of the important wills conveying large amounts of property can be mentioned. Of the wills of recent years those of Theodore Leonard, Luther Donaldson, Louise Deshler and James Ohlen were con- tested and set aside. That of Doctor Van S. Seltzer, after a prolonged trial, was sustained. The will of Alfred Kelley disposed of some of the most desirable pro- perty in the city. A large tract in the northwestern part of the city passed under the will of Robert Neil. William Neil, long prior to his death, conveyed to his children large tracts of land ; yet his will and that of William S. Sullivant disposed of more land within the present city limits than any others admitted to probate in Franklin County: Excepting the Goodale, Hubbard, Starr and Fisher tracts, and a small traet south of Eighth Avenue, William Neil at one time owned all the property west of Iligh Street between Goodale Street and Lane Avenue. At the same time his possessions extended south of the western portion of Goodale Street to the Scioto River. Ile also owned large tracts east of High Street. William S. Sullivant, at the time of his death, held considerable property in the eastern part of the city, but most of his possessions were west of the Scioto River. The magni- tude of his estate may be learned by an examination of the proceedings in partition brought by his executors and trustees. Other wills conveying large estate are those of Lineoln Goodale, Gustavus Swan, David Taylor, Lyne Starling, Jacob Hare, Phillip Fisher, David W. Deshler and Orange Johnson.
Much information relating to the history of Columbus lands, although required to be made a matter of official record, has not been preserved, yet enough remains to show some striking contrasts. The rate of taxation as shown on the duplicate in the Auditor's office for the year 1826 was six mills on the dollar ; in 1827 six and seveneighths mills. The increase in population and wealth necessarily increased the expenditures of the city. In 1873 the rate of taxation was higher than at any other time in the history of the city, the levy for all purposes for that year being twentyfive and twotenths mills. The levy for 1870 and 1891 was twentyfour mills. A tabulation showing the value of real property and the rate of taxation for a series of years will be found in the appendix to this chapter.
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HISTORY OF THE CITY OF COLUMBUS.
The duplicate of property listed for taxation for the year 1811 for the whole county, covered nearly nineteen double pages ; that of 1812 twentythree double pages ; of 1816 thirtyone and a half pages ; of 1817 twentynine and a half pages. From onesixth to onefifth of the entire space covered by each of the foregoing duplicates was required for the listing of the lands of Lucas Sullivant. The dupli- cate of the city of Columbus for 1891 alone covers 974 large double pages. In this connection it should be remembered that the city limits now extend far beyond those of the original town, the site of which covered about eight hundred acres. At the beginning of 1863 the city area was eleven hundred acres, but in the course of that year it was increased to twentyseven hundred acres. In 1873 the city area was increased by annexation to 6,752 acres ; it is now estimated by Josiah Kinnear, City Civil Engineer, at 10,240 acres. The number of new dwellings erected from 1826 to 1829 was one hundred. That was considered rapid growth.
The duplicate in the Auditor's office for the year 1811 shows that in the entire county four persons owning twenty picces of property, twelve of which belonged to John S. Mills, were delinquent for taxes ; that of 1812 shows twelve delinquent ; that of 1813 five ; that of 1817 four. The amount of delinquent taxes for 1817 was $274.687; the penalty was $245.79. The record does not show whether the taxes were paid or not. The greatest delinquents were George Turner, Arthur O'Harra, James Johnston -one of the original proprietors of Columbus - and Henry Brown, who was at that time the proprietors' agent. In 1827 seventysix persons and ninetyseven pieces of property were returned as delinquent. At the close of the duplicate of 1816 appears a list of transfers of real estate in the county for that year. These transfers numbered in all sixtyfour, and were accompanied by a brief description of the property sold. The number of transfers in the entire county in 1817 was seventyone. There is nothing to indicate whether the names on the lists are those of purchasers or sellers. In the early history of the County transfers were not noted as now on the margin of the duplicate. If there was any systematic method of recording transfers it has escaped our attention. In 1848 a book of transfers was opened, but the record relating to Columbus skips from page to page in such a bewildering manner as to defy all attempts to determine the number. There was, however, a great increase in the number of transfers as compared with the years above mentioned. Another book of transfers was begun in 1863. A tabulation of deeds and mortgages filed for record will be found at the end of this chapter.
In 1831 four hundred persons were returned as owning land in Montgomery Township; two hundred and ninetythree of these were returned as owning pro- perty in the City of Columbus; the names of twelve were unknown. The imper- fect manner in which the record was kept throws some doubt upon the absolute accuracy of the above figures, but they are substantially correct. It is estimated by the County Auditor, Henry J. Caren, that there are now in the city as many as fifteen thousand real estate owners.
The early records in the Auditor's office were not kept in books of a durable nature and have not been preserved with very great care. Most of the duplicates are bound with pasteboard covers; but few of them are so much as an inch in
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