History of Armstrong County, Pennsylvania, Part 106

Author: Smith, Robert Walter
Publication date: 1883
Publisher: Chicago : Waterman, Watkins
Number of Pages: 790

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acres and 54 perches of it to William Noble, Sr., be- ing the same on which he then resided, July 8, 1831, for $5 to each and divers other good causes. In an amicable partition, July 4, 1845, James Noble released 67 acres of western part of that parcel to Jane and Mary Noble, and they by the same deed released to him 85 acres and 48 perches of the eastern part. Robert Noble conveyed 28 acres and 15I perches of it to John Richey, April 5, 1865, for $1,275.

Adjoining "Huntingdale " on the east are de- preciation lots Nos 278 and 279, the latter being the northern one, called "Polignac," 2017'6 acres, one of the Audibert tracts included in Sheriff Brown's sales to Joseph Audibert, and of which he by Loeben conveyed 75 acres to John Houston, June 21, 1837, for $337.50 ; 25 acres and 25 perches to Jacob Swigert, August 11, for $112.50. Seventy-five acres of the southern part having become vested- the records don't show how-in John G. Dieterly, he conveyed the same to William Noble, Jr., April 1, 1853, for $1,875, which the latter conveyed to John Richey, October 24, 1868, for $3,700, who conveyed the same to the present owner, Paul Mc- Dermitt, April 21, 1874, for $8,000.

This tract was evidently named after Melchior de Polignac, abbé and afterward cardinal, who was born in 1661, of a distinguished family, in Langue- doc, France.

Adjoining "Polignac " on the south is deprecia- tion lot No. 278, called " Walnut Bottom," included in survey by Joshua Elder, March 12, 1783, pur- chased at the Coffee house, Philadelphia, by John Mccullough, released by him to Andrew Porter, to whom the patent was granted January 22, 1772, and given by him to his son, George B. Porter, March 18, 1812, who conveyed it to James Hind- man, August 12, 1824, for $855, which was subse- quently divided between him and William Hind- man by a central line run from north to south by J. E. Meredith. James Hindman conveyed 105 perches of his purpart to Mark Colwell, Robert Hindman and Robert Wible, trustees of the West Glade Run Presbyterian congregation, July 18, 1872, for $1, adjoining the parcel which John Reed had previously conveyed to the church.

Adjoining " Walnut Bottom " on the east is de- preciation lot No. 281, an Audibert tract called " Or- leans," included in the sheriff's sales to Joseph Audibert, and in the sales from him to Loeben, who conveyed 100 acres to Abraham Bowser, Oc- tober 9, 1832, for $200. He died intestate, in April, 1853. This parcel of "Orleans," containing 105 acres and 97 perches, was in proceedings in partition valued at $1,399.36, November 21, 1854, and was

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taken by his son, Benjamin S. Bowser, the eldest of his eleven children, who conveyed 100 acres of it to John M. Thompson, April 1, 1862, for $2,300.

Loeben conveyed 45 acres of " Orleans " to Sam- uel Bowser, December 22, 1835, for $100, and the same quantity to Jacob Flanner, seven days later, for the same price.

This tract was named after the city of Orleans, situated on the river Loire, in France.

Adjoining " Orleans" on the north is deprecia- tion lot No. 280, 20176 acres, which was surveyed October 18, 1785, and the patent for it, in which it is called " Great Meadow," one of the lines of which is mentioned as "crossing Beaver creek," was granted to Richard Freeman, October 4, 1786, who, at the time of his death, was a resident of Washington, District of Columbia. Samuel Bowser settled upon and improved, cleared four or five acres of that portion of it at and around the falls in Glade run, and built a small cabin, about 1805. He was living at the falls after harvest in that year. He built a small cabin a few rods west of the falls and south of Slate Lick run and the present turnpike road from Kit- tanning to Butler. Joseph Bowser testified that, when he came out in 1805, Samuel had his small one-story cabin with one room, about fifteen or twenty rods from the run, with a turnip-patch south of the cabin. He was first assessed on the Buffalo township list with I horse and 1 cow, at $20, in 1806, and opposite his name, in the column headed "Title of Land," is the word " sold," and the next year with the same and 200 acres at $80, and " Imp." in the title column, with which quan- tity of land he continued to be assessed until 1816, and for some time thereafter with only 100 acres. He and David Flanner, September 7 of the last- mentioned year, entered into a written agreement, remarkable for its brevity and informality, and want of an express consideration, by which the former sold to the latter " his improvement," and agreed " to give up his settlement against the Ist of May next, and the half of the survey where he pleases to have it ;" that is, Bowser agreed to sell to Flanner the one-half of " Great Meadow," either north or south of Slate Lick run, which the latter might prefer. Bowser having left in pursuance of his agreement, Flanner moved on to the improve- ment, which consisted of four or five acres of cleared land and the cabin, and occupied the house which he erected-a cabin house which he bought for sixteen days' work and built an addition to it- about forty rods northwesterly from the junction of Glade run and Slate Lick run, between the latter and the present turnpike road, his stable or barn

being a few rods southeast of the house, south of that road, according to J. E. Meredith's draft of his survey of " Great Meadow," made May 29, 1845. Flenner continued to occupy and improve the part south of Slate Lick run until about 1832. There was a primitive log schoolhouse a short distance north of the mouth of Slate Lick and west of Glade run, which was an old one when first occupied by William Burnheimer, who cleared some land and made shoes for the neighbors, in or before 1822, possibly the house in which James Barr, Jr., had taught from 1805 till 1808 .* Burn- heimer's successor in that house was Peter Toy, who resided there from 1825 until the spring of 1833, during which time he cleared some land and paid the taxes. Both were tenants under Samuel Bowser, who then claimed the whole of " Great Meadow."

Anthony Cravenor, another claimant of this tract, then a single man, came upon it, as early as 1825, and proposed building a mill, and was first assessed with 100 acres of it, 1 horse and 1 cow, in 1832, at $226. He boarded for awhile with Flan- ner, became a steady resident in 1833, and after- ward built a house, a few rods north of Slate Lick run and northeast of Flanner's house. He claimed, while boarding with Flanner, to have a foreigner's title, and wished Flanner to co-operate with him in acquiring possession. That title consisted of three deeds from Francis and Simon Freeman and others, heirs-at-law of Richard Freeman, of the county of Wicklow, Ireland, to Cravenor, releasing and quit- claiming their respective interests in "Great Meadow," dated February 28, 1831, for $300; from Richard B. Freeman, September 22, for $13; and from Anthony Wilson and wife, of Elverston, county of Dublin, June 8, 1832, for $1. The first- mentioned of these deeds was executed by James Stewart, formerly of Neury, Ireland, but then of Pittsburgh, Pennsylvania, who was a " gen- eral European agent," by virtue of a power of attorney, which was duly executed and acknowl- edged before E. Butler, " Sovereign of Carlo," in the county of Carlo, Ireland, September 16, 1830, which was recorded in Armstrong county, March 3, 1831. The other two deeds were executed by the grantors in Ireland, and their signatures were proven by Stewart's affidavits, made before an alderman of Pittsburgh. Cravenor, having thus acquired the proper title to the whole tract, pur- chased, as he insisted, the interest which Bowser had acquired in it by his improvement and settle- ment. While Toy was living in the old school- house, Bowser told him that he had sold the north

* Vide West Franklin.

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half to Cravenor ; and he told James Noble that he had sold the northern part to Cravenor, who, he said, had paid him and had got his deed for it ; and there was some evidence that Cravenor had said that he bought only the half of the tract north of Slate Lick run from Bowser ; but that deed is not recorded. Bowser brought an action of assumpsit against Cravenor to No. 15, June term, 1828, in the common pleas of this county, and ob- tained a verdict and judgment for $264.55, Decem- ber 25, 1829, which probably originated from their agreement about this land. Cravenor, it seems, did not go on to this tract so much for farming as for building a mill, which he began to do soon after his advent, and located it several rods below the mouth of Slate Lick, and east of Glade run. He cut logs for it on both sides of Slate Lick. The walls of the lower story were clay and stone, eight feet high. Some if not all the stonework and the raising of the second story were done by " frolics," as the gratuitous labor of neighbors was called. Several of the pieces of timber had become so much decayed that some of the men, who were helping to put them in their places, were in danger of being killed. The head and tail races were dug. The work progressed very slowly for about twelve years, yet it was " merely the shell of a 'mill," and was never completed. Its roof having become very rotten, the whole building was torn down about 1865, and Robert Armstrong procured some of the logs for the sills of his house. Cravenor also set out an orchard of twenty trees on a hill, and cleared land south of Slate Lick run.

Flanner, after clearing fifteen acres and building a house on the part of " Great Meadow," which he had purchased from Bowser, and after learning the nature of Cravenor's claim to the whole tract, " threw up the old article and gave up the land to Bowser," but not by writing. It was merely a parol recision of Bowser's above-mentioned con- veyance to him, and he was permitted, if he so wished, to remain on eight or nine acres and pay one-third of the crops raised thereon as rent to Bowser. He, however, left soon after Cravenor became a permanent occupant.

Hence arose long-continued litigation between Bowser and Cravenor and their heirs respecting the title to the southern half of "Great Meadow," or that part of it south of Slate Lick run.

Bowser instituted his action of trespass, etc., for mesne profits to No. 97, March term, 1844, in the common pleas of this county. The writ not hav- ing been delivered to the sheriff, an alias summons to No. 42, June term, 1844, was issued and served. The case was ruled out and arbitrated Tuesday,

February 11, 1845, at the house of David Reynolds, Kittanning, and the award of the arbitrators for $140.80 and costs in favor of the plaintiff was filed February 27, from which the defendant appealed. A jury having been called in this case, June 16, 1846, the plaintiff became nonsuit. Bowser is- sued an alias summons in ejectment to No. 9, March term, 1845, for 100 acres and 123 perches of the southern part of "Great Meadow." A jury having been called and sworn, January 16, 1846, rendered a verdict in favor of the plaintiff for " one hundred acres to be laid off the south side of the tract No. 280, to commence at the western side of the tract at Slate Lick run, thence down said run to Glade run; thence down the southwest side of Glade run till an east line crossing Glade run, to the eastern boundary of the tract, will include the hun- dred acres, and the defendant to be entitled to the mill and water privilege attached to the mill." Judgment was entered on the verdict, and the same day a writ of error to the supreme court was filed.

The court below (White, P. J.) instructed the jury thus: " If the fact is that Cravenor came into possession under Bowser's tenant, he is in the same situation, and the law regards him as Bowser's tenant, and he must surrender the possession to him when called on for that purpose, and this whether Bowser has a title or not, and the defend- ant cannot retain possession, although he may have purchased a better title," which instruction was the only error assigned. The opinion of the su- preme court was delivered October 23, by Coulter, J., who, inter alia, said: “ As an abstract proposi- tion the doctrine of the court is unquestionable law. The error consists in the application of it to the facts of this case." The syllabus of the opinion is: A written contract for the purchase of land, in part executed by entry and improvements made, cannot be rescinded by a verbal agreement and surrender of the instrument, the vendee remaining in possession under a verbal agreement to occupy as tenant. And the entry by one having a better title with the consent of the vendee continuing in possession under such agreement, and with notice thereof, is not subject to the rule which estops one entering by collusion with a tenant from setting up an adverse title against the landlord.

There having been that error in the instruction of court below, the judgment was reversed and a new trial awarded.

The death of Cravenor having been suggested, June 26, 1847, his heirs-at-law, Anthony and John Cravenor, were substituted, and their guardian, William Noble, was admitted to defend, June 23,

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1848, and on the 26th a jury was called and sworn, which rendered a verdict in favor of the defendants.

Bowser having brought another action of eject- ment to No. 27, September term, 1850, for 112 acres and 12 perches, a jury was called and sworn June 21, 1852 (Knox, P. J.), which rendered a ver- dict in his favor for that portion of land embraced in the writ lying south of Slate Lick run, accord- ing to the draft made by J. E. Meredith, and for the defendants for the residue of the land embraced in the writ. In that draft the central line of " Great Meadow " extends from the point at which its western line is crossed by Slate Lick run due east across the western bend and falls of Glade run to its eastern line, leaving several acres, on which were Flanner's house and barn and a portion of the turnpike road to the north of it. That line was run at the instance of Bowser in 1844, and at the instance of Cravenor in 1845. A writ of error to the supreme court was filed July 13; record re- turned November 25; judgment affirmed, and under a writ of habere facias possession was delivered to Bowser February 11, 1853.

That, however, was not a finality. John S. Cravenor, who had purchased his brother Anthony's interest in this land, brought his action of eject- ment to No. 32, March term, 1864, against David S. Bowser and about a dozen others, heirs-at-law of Samuel Bowser, deceased, to recover the 100 acres south of Slate Lick run, Judge Buffington having been concerned as counsel in this case before his election and appointment, it was tried before Judge Campbell, of the 18th judicial district, at a special court held at Kittanning, in November, 1866. The jury was called and sworn on the 20th, and rendered a verdict in favor of the plaintiff for the land, the above-mentioned 100 acres described in the writ. Judgment having been entered on the verdict, a writ of error to the supreme court was filed December 11. The record was returned Janu- ary 18, 1868, with the judgment reversed and a new trial awarded.

A part of the earlier history of this case is that a son and son-in-law of Samuel Bowser, October 26, 1846, induced Flanner to sign an assignment to Bowser of all his interest in the land to which he was entitled under that informal written agree- ment of September 7, 1816, for $1, and “divers other and sufficient considerations." That was while the first case was in the supreme court, and was there decided favorably to Cravenor as above stated. After Judge Buffington, who was then of Cravenor's counsel, returned from Pittsburgh, he and Governor Johnston conferred and sent for

Cravenor and Flanner to come to them. In the course of the interview Flanner stated he signed the above-mentioned assignment under the impres- sion made upon his mind by those who solicited him to sign it that he was signing merely the old article of September 7, 1816, and not selling out or transferring his interest under it. His statement was reduced to writing and signed and witnessed. Both of Cravenor's counsel then advised him, after fully explaining his relationship to the title and of the reversal of the judgment in the supreme court, to execute a conveyance to Cravenor of all his right, title, interest and claim of, in, to and out of that tract of land for $50, which he did, and the money was paid. Thus it became an important question whether Flanner's interest was that of a purchaser or tenant, and consequently whether he transferred to Cravenor a purchaser's or tenant's interest in that disputed territory. It was insisted in this, the third, trial in the court below, that as there was no consideration expressed in the contract of Septem- ber 7, 1816, and none shown in the evidence, it was on the part of Bowser a mere voluntary engage- ment without any equivalent, and not enforcible at law; that that contract, being executory, might be rescinded by parol, and if the jury believed from the evidence that it was delivered up to Bowser, and that Flanner afterward left the land and abandoned all claim to it, there was a sufficient evidence of a rescission of the contract, and any subsequent conveyance made by Flanner was void; that if the jury believed from the evidence that Flanner, after taking possession of the land under that contract, attorned to Bowser as his landlord, or agreed to pay rent to him, or fixed upon himself any other character than that under which he had entered, he thereby abandoned his equities under that contract, and his possession was referred to his new agreement and would inure to the benefit of Bowser, and if he and Flanner had held adverse possession for twenty-one years, Cravenor could not recover; that if Cravenor was a mere boarder in Flanner's house, it was not such an entry as would justify the possession of Flanner, or suspend the running of the statute of limitations, although he might be the holder of the legal title; that until he did some act indicative of his intention to claim the possession, or declared he entered for the pur- pose of taking possession under his title, and if the possession of Bowser and his tenants to that of Flan- ner was exclusive, adverse and continued for twen- ty-one years before such entry by Cravenor, the statute of limitations would be a complete bar to Cravenor's right to recover in this action. The court held that there was no consideration men-

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tioned in that contract, but whether any had been shown by the evidence was referred to the jury, but the defendants had given evidence that Flanner gave up his possession because he was unable to pay the purchase money, and although no consid- eration was proven, if he entered and made valu- able improvements on the faith of that agreement, he would still have an interest that could be en- forced; that the loose declarations of Flanner, as to changing his possession from a purchaser to a tenant were insufficient to establish the relation of landlord and tenant; that if he entered as a pur- chaser in 1816 under that contract he could only become a tenant of Bowser by a conveyance good under the statute of frauds and perjuries, a parol surrender of the article and possession alone would not divest his title, and, therefore, the possession of Cravenor under Flanner would not inure to Bowser unless under the agreement of 1846; if Bowser and Flanner had the adverse, exclusive and continued possession of the whole land for twenty-one years, it would confer a good title against all the world, and that a mere casual entry of the holder of a legal title would not stop the running of the statute, but as soon as done with the claim of right and exercising acts of ownership, it would suspend the running of the statute.

Those rulings of the court were among the errors assigned, and were all affirmed. Another er- ror assigned the admission of the above-mentioned power of attorney to James Stewart in evidence. The ruling of the court in that respect was affirmed.

The only ground on which the judgment was reversed was the admission of Flanner's unsworn written statement, along with his and Judge Buffington's depositions. That statement was made to show that Flanner's transfer of his inter- est to Bowser was procured by fraud. Says the supreme court (Thompson, C. J.), "it was hearsay of the most objectionable kind, and should never *

have been offered. *

* A charge of fraud, such as it contained, would, in a case in which there were any facts for the jury, be likely to be damaging. It is possible it did no harm, but it is very probable it did. This assignment of error we think is sustained, and on account of it the judgment must be reversed."

This case was retried before Judge Sterrett of Pittsburgh, at a special court commencing on the fourth Monday of February, 1870. The jury was called and sworn March 3, and rendered a verdict in favor of the plaintiff, on which judgment was entered and to which a writ of error was filed March 30. The second was returned, with the

judgment affirmed, January 16, 1872, and posses- sion was subsequently delivered to John S. Crav- enor, who brought his action of trespass, etc., for mesne profits to No. 50, June term, 1872, and the defendants by their attorney confessed judgment, Angust 26, 1873, for $300 and costs, and thus ended the litigation about the southern half of " Great Meadow," which commenced nearly thir- ty years before its close.

Another name by which No. 280 was com- monly known by the early settlers was the " Glade Run Falls Tract." There is a hamlet at and near the falls now called " Walkchalk." A drum-band was organized here a few years since. John Crav- enor on a certain occasion remarked respecting that band, that if he had command of it he would make its members "walk chalk." Hence the modern name of this point. The grangers several years ago erected a two-story frame building here for a hall, but on account of differences among them it has never been used for that purpose.

Adjoining "Great Meadow " and the northern part of "Orleans " on the east is depreciation lot No. 306, called " Morlaix," pronounced Mor-lai, 2107% acres, one of the Audibert tracts which became vested in Gabriel Philibert Loeben, who conveyed 103 acres and 11 perches to Peter Toy, January 21, 1836, for $200, having been previously occupied by Bowser, to which Toy removed from the old schoolhouse on " Great Meadow." Loeben conveyed 40 acres and 8 perches, with 3 acres and 68 perches of No. 305, to James Armstrong, Octo- ber 13, 1840, for $656.25, and as attorney-in-fact of Christopher Garnier, of L'Orient, France, 43 acres and 75 perches, with 6 acres and 82 perches of No. 303, June 10, 1846, for $300. This tract was named " Morlaix" after a town in the depart- ment of Finisterre in France.

Adjoining " Morlaix " on the east is depreciation lot No. 305, 21176 acres, with 200 acres of which Michael Starr was first assessed in 1810 at $200, and with which he continued to be assessed until 1817, when it was transferred to G. P. Loeben, having been included in Sheriff Brown's sales to Joseph Audibert, who by Loeben, his attorney-in- fact, conveyed it to James Lanbie, "sojourning in the city of Pittsburgh," April 29, 1822, for $800, who conveyed it to Loeben, June 4, 1823, for the same consideration, and which, with small parts of three other adjoining tracts, 219 acres and 57 perches, the latter conveyed to James Armstrong, October 13, 1838, for $3,285, which quantity was in- cluded in his devises by his will dated July 5, 1859, and registered August 6, 1866, to his sons John, Robert and Thomas, subject to the payment

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HISTORY OF ARMSTRONG COUNTY.

by John and Robert respectively of $300 to his daughter, Mrs. Ann Eliza Coventry, and with which they are still assessed.

Adjoining No. 305 on the east are depreciation lots Nos. 303 and 304. The western part of the for- iner adjoins "Hop Yard," and the eastern part depreciation lot No. 302 on the south, which, pro- jecting a few rods above "Hop Yard," the eastern part of 303 extending to the river, is somewhat nar- rower than its western part. The other lot, also extending to the river, is a rectangular parallelo- gram. Both were included in Sheriff Brown's sales to Joseph Audibert, and descended to Marie Touis- sant Audibert, " as sole heiress at law." She, by her will dated December 11, 1840, and registered at L'Orient, France, February 15, 1841, devised No. 303, called " Quimper," to Christopher Gar- nier, of the city of Nantes, which he empowered Loeben to sell by his letter of attorney in French, the acknowledgment of which before Charles P. Dasnier and his colleagues, notaries public, at L'Orient, April 16, 1841, which was translated by Lewis V. Carron, who swore that his translation was " correct and faithful " before Thomas Steele, alderman of Pittsburgh, February 9, 1846. The acknowledgment before these foreign notaries was made valid by act of April 22, 1846. Loeben, as attorney-in-fact, and James Miller, of Bedford county, Pennsylvania, entered into a written con- tract for the sale and purchase of 299 acres and 69 perches, February 26, 1847, for $4,500. The for- mer executed and delivered to the latter a deed therefor August 30. Loeben, as attorney-in-fact, conveyed 27 acres and 53 perches of this tract to Daniel Lemmon, August 24, 1848, for $327.75.

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History of Armstrong County, Pennsylvania, Part 106

Author: Smith, Robert Walter Publication date: 1883 Publisher: Chicago : Waterman, Watkins Number of Pages: 790

Author: Smith, Robert Walter
Publication date: 1883
Publisher: Chicago : Waterman, Watkins
Number of Pages: 790