History of Armstrong County, Pennsylvania, Part 57

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

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267

MADISON TOWNSHIP.

out at another place a vacancy where it did not adjoin the remaining vacancy on the west, which would likely be a loss to the commonwealth and every other person except Moyer; and that he had surveyed on his warrant 440 instead of 400 acres, thus encroaching still further west upon and de- priving them of their right to a full tract of 400 acres. They were, however, willing for him to have 400 acres surveyed on his warrant west of the Holland land, i. e., the above-mentioned tract covered by warrant No. 3001, but not to throw out and take in of the vacancy where he pleased for the purpose of encroaching upon them further to the west. The result was an action of ejectment by Orr against Moyer, to No. 34 September term, 1840, in the court of common pleas of this county. The case was tried at December term, 1841, and the verdict of the jury, on the 21st, was for the plaintiff, by establishing the line running north from the Black Oak corner on the line of John Elliott (" Springfield ") as his eastern bound- ary, as marked on the general diagram, and found for him all the land west of that line, with nominal amounts for damages and costs, on which judgment was entered. John Smith, of Kiskiminetas town- ship, this county, and David Peeler, of Indiana county, were the surveyors under the rule of court. Moyer obtained his patent for 400 acres east of that line, March 17, 1846, the tract having been resurveyed on the 2d by order of the board of property.

THE HOLLAND LAND COMPANY.

The rest or major part of the territory within the present limits of this township was covered by warrants to The Holland Land Company, and be- cause so much of the area of this township was thus covered (as well as portions of other town- ships), a sketch of that company is here given.

It was organized at the city of Amsterdam, in the Kingdom of Holland, in the latter part of the eighteenth century. Its original members were Wilhelm Willink, Nicholas Van Staphorst, Pieter Stadnitski, Christian Van Eghen, Hendrick Vol- lenhoven and Rutgert Jan Schimmelpenninck, of that city ; at least those are the names mentioned in a prevention patent for a tract called "Nor- mandy," dated October 7, 1799. They were joint tenants, subject to the right of survivorship, except, perhaps, for about sixteen years. The act of assembly of Pennsylvania, March 24, 1828, pro- vided that the act of March 31, 1812, abolishing survivorship in joint tenancy, should not apply to the lands held by that company in this state and sold under either the former act or the act of March 31, 1823, which were acts enabling them

and their vendees, though aliens, to sell and pur- chase their lands, as. though they were not aliens. Stadnitski, Van Eghen and Van Staphorst died prior to April, 1805, and subsequently Willink, Vollenhoven, Van Henkelom and Schimmelpen- ninck.

The original members, it is said, had loaued large amounts of money, either directly to the United States, or, indirectly, to Robert Morris, to aid in achieving American independence. As they preferred to invest the amount which they received, after the close of the revolutionary war, in this country, they purchased from Morris, in 1792, an immense quantity of land west of the Genesee river, in the State of New York, on which they, as one of their agents stated, lost $3,000,000. They acquired, about the same time, inchoate titles to numerous tracts of land in Pennsylvania, on both sides of the Allegheny river, in the territory in- cluded in the purchases from the Six Nations, at Fort Stanwix, October 23, 1784, and from the Dela- wares and Wyandots at Fort McIntosh in Janu- ary, 1785. The boundaries of these purchases began "at the south side of the Ohio river, where the western boundary of the State of Pennsylvania crosses the said river, near Shingho's old town, at the month of Beaver creek, and thence by a due north line to the end of the forty-second and the begin- ning of the forty-third degrees of north latitude, thence by a due east line, separating the forty- second and forty-third degrees of north latitude, to the east side of the east branch of the river Sus- quehanna, and thence by the bounds of the pur- chase line of 1768 to the place of beginning," which included all the northwestern part of this state, except the triangle bordering on Lake Erie, which, having been purchased from the Indians by the United States, January 9, 1789, by the treaty at. Fort Harmon, for £1,200, was conveyed by the latter to Pennsylvania, March 3, 1792, for $150,- 640.25. "The Holland Company," said Judge Yeates, at March term, 1800, in the Commonwealth vs. Tench Coxe, " have paid to the state the consid- eration money of 1,162 warrants, and the survey- ing fees on 1,048 tracts of land, besides making very considerable expenditures by their exertions, honorable to themselves and useful to the com- munity, in order to effect settlements. Computing the sums advanced, the lost tracts, by prior im- provements and interferences, and the quantity of 100 acres granted to each individual for making a settlement on their lands," i. e., west of the Alle- gheny river, "it is said, that, averaging the whole, between $230 and $240 have been expended by the company on each tract of land they now claim."

268

HISTORY OF ARMSTRONG COUNTY.

Forty of those tracts, within the original limits of Armstrong county, that is, between Toby's creek, now Clarion river, and the purchase line, were covered by warrants to Herman Le Roy and John Linklain, of the State of New York. Will- iam Bayard, of the same state, appears to have succeeded to Linklain's interest in these tracts prior to April, 1805, for he and Le Roy were then two of the complainants in the bill of interpleader in the circuit court of the United States for the district of Pennsylvania, in which Jesse Waln, Isaac Wharton, in his lifetime, David Lewis, Sam- uel M. Fox, in his lifetime, and John Adlum,* citi- zens of the United States, were defendants. That proceeding was instituted for the purpose of ascer- taining to whom and in what proportion belonged the title, estate and interest to 145 tracts of land and unsatisfied warrants in this state, which had been sold for taxes due the United States, and con- veyed by John Smith, United States marshal for the district of Pennsylvania, by his deed dated May 23, 1805, to Panl Burti, who purchased for the company. These tracts were, of course, claimed by both complainants and defendants. After hearing the bill and answer, October 31, 1807, it was ordered and decreed by the court that a conveyance be made to the defendants Waln, Wharton's heirs and Lewis, in proportion to their claims, and in favor of Fox's heirs and AdInm for the residue. In obedience to that decree Burti, in whom, as agent of the complainants, was the legal title, con- veyed to the defendants their respective portions of these tracts, February 25, 1812, of which par- tition was made among such of the defendants as were living and the heirs of such as were dead, by virtue of the act of March 28, 1814, and its supplement of February 6, 1815.

Twenty-five of the tracts covered by warrants to H. LeRoy & Co. contained, respectively, 990 acres, and some of the other fifteen of them contained more and others less than that number. They aggre- gated 38,872 acres. Twenty-eight tracts were cov- ered by warrants to Wilhelm Willink & Co., of which one contained 880, and each of the rest 990 acres, aggregating 27,610 acres. Those tracts ap- pear to have been taken up both by Le Roy & Co. and Willink & Co. under the act of April 8, 1785, according to which the secretary of the land office was to receive applications for lands in the above- mentioned late purchases, except north and west of the Ohio and Allegheny rivers and the Conewango creek, not exceeding 1,000 acres in one application, after the price had been reduced by the first section of the act of April 3, 1792, to fs per 100 acres of

# See Cowanshannock township.

the land embraced in those purchases east of the Allegheny river and Conewango creek, which were not subject to the rigid conditions of settlement of those on the other side of these streams.

The Holland Company soon after its organiza- tion appointed Paul Burti, an Italian gentleman, of Bloekley's Retreat, Philadelphia-whose house, now on the grounds of the Pennsylvania Hospital for the Insane, is occupied by Dr. Thomas S. Kirk- bride *- and Harm Jan Huidekoper, a Holland gentleman, of Meadville, their agents and attorneys- in-fact, the latter being designated in one of the former's letters of attorney to David Lawson, " the general superintending agent." They not only sold lands belonging to the company, but in some instances acquired and held in themselves the legal title to some of the latter's tracts, and as grantors conveyed tracts and parcels of tracts to purchasers. Patents for various tracts were granted to them in trust for the company. For instance, John Smith, United States Marshal for Pennsylvania, conveyed to them October 16, 1804, the interest of James Wilson, who was a prominent member of the convention of this state for the ratification of the Federal Constitution, in thirty tracts, partly in Brodhead's former district No. 6. Huidekoper released his part to Burti March 16, 1811, more or less of which the latter conveyed to the company's vendees. The records of this county show incidentally that Robert Beatty was their sub-agent for the sale of Holland lands east of the Allegheny and south of Toby's creek prior to 1811. Burti executed two letters of attor- ney to David Lawson August 19, 1811, one author- izing him to sell lands warranted to Willink & Co. and to Le Roy & Co., to receive moneys on contracts of sale, and such as were due on con- tracts made by Beatty, and to he subject to the instructions that he might from time to time receive from either Burti or Huidekoper. He continued to act as such until 1817-18.

Some of the company's extensive sales in the fifth and sixth, or Brady's and Brodhead's, districts were : By Burti, as attorney-in-fact, by article of agreement, May 2, 1816, to sell to Benjamin B. Coop- er, of Coopersport, New Jersey, 253 tracts, some of which were in this county, or to such person or persons as the latter should appoint, provided that title should not be made to any of them until all the purchase money should be paid. Proceeding not in chronological order, Burti conveyed to Cooper the legal title in him to 47 tracts, covered by warrants to Le Roy & Co., dated December 13, 1792, some of the patents for which were granted

$ Townsend Ward's Walk to Darby.

JOHN T. JACKSON.

MRS. JOHN T. JACKSON.

RES. OF JOHN T. JACKSON.

269

MADISON TOWNSHIP.

to him, and others to him and Huidekoper, in 1812 and 1813 ; and the same day Burti, as attorney-in- fact for the company, conveyed 25 other tracts, covered by warrants to Willink et al., dated De- cember 13, 1792, for which patents were granted to them August 26, September 6, October 14, No- vember 4, 5, 6, 1802. The consideration expressed in each of these conveyances was $1, whence it is inferrible that the full consideration was paid at some other time, and perhaps in some other way than by cash. Cooper executed his letter of attor- ney to David Lawson November 18, 1816. Cooper and Charles C. Gaskill entered into an agreement April 1, 1818, authorizing the latter to sell the lands which the former had agreed to purchase from the company, May 3, 1816, in farms of not less than 50 or more than 500 acres each. Under that agreement it was made optional with Gaskill to take about 100,000 acres of those 253 tracts, at any time in three years after the date of the agree- ment, at $2 per acre, with interest from January 1, 1819, in ten annual payments, or at an annual ground-rent of 14 cents per acre, redeemable at ány time before January 1, 1830, at $2 per acre and arrearages of ground-rent; or to take 5 per cent on all sales of those lands that he might make. He must have accepted the last-mentioned condition, as Mrs. Cooper, February 8, 1819, exe- cuted a release of her dower to every person that had purchased, and that might thereafter purchase, any of those lands from Gaskill by virtue of the above-mentioned agreement between him and her husband. Gaskill, as Cooper's executor, conveyed some parcels after Cooper's death.

The company, by their attorney-in-fact, con- veyed 65 tracts, partly in this county, July 27, 1816, to Sommers Baldwin, then of Troy, Jefferson county, Pennsylvania, but formerly of Fairfield county, Connecticut, for $75,284.06, for which he gave his obligations, for securing which he gave his mortgage on those tracts, May 28, 1819, to Burti and Vanderkemp. The latter became the sole mortgagee on the death of the former, which oc- curred some time after March 19, 1823. Baldwin sold or agreed to sell 38 parcels of these tracts, varying in quantity from four acres to a thousand, to Hewlett Smith, of New Haven county, Conn., and thirty-five others. Baldwin died intestate, with- out having satisfied that mortgage. Henry Jack, of Jefferson county, was appointed administrator of his estate, against whom judgment was obtained for the above-mentioned amount, on which writs of levari facias were issued to the sheriffs of Arm- strong and Indiana counties, on which Jacob Mechling, sheriff of the former county, sold 13

tracts covered by warrants to LeRoy & Co., and the same number, covered by warrants to Willink & Co., to Vanderkemp, for $500; and Clemence McGarra, sheriff of Indiana county, sold 33 LeRoy & Co. tracts and 13 Willink & Co. tracts to Van- derkemp for $1,000. Both of these sales were in December, 1826. The name of Vanderkemp was used in those proceedings in trust for the company. He executed a letter of attorney to Gaskill, June 16, 1825, authorizing him to sell those lands, and he continued in charge of those Holland lands in this, Indiana and Jefferson counties until the spring of 1849.

On August 14, 1816, Burti, as holder of the legal title, conveyed 21 LeRoy & Co. tracts, partly in this county, for $15,120, and, as attorney-in-fact, 27 Willink & Co. tracts, for $19,000, August 14, 1816, to Oliver W. Ogden, of New Germantown, New Jersey, for the aggregate amount of which he gave his mortgage thereon to Burti and Vanderkemp, and appointed David Lawson his attorney-in-fact to sell those tracts, which, however, he re-conveyed to Burti and Vanderkemp May 3, 1819, for $34,682, and they executed their letter of attorney August 9 to Eben S. Kelly, authorizing him to satisfy that mortgage, which he did September 15.

Several of the company's tracts in this county were sold for taxes. Thomas Hamilton, county treasurer, sold one of them to the county commis- sioners, October 10, 1818; Samuel Matthews, county treasurer, one, October 25, 1820, and eleven others, October 1, 1822, which the commissioners conveyed to Vanderkemp, March 24, and he to Willink & Co., November 7, 1826.

The act of March 31, 1823, authorized the company to sell their lands and their vendees to purchase them, though they or any of them were aliens, notwithstanding any previous law to the contrary.

In 1849 the surviving members of the company were Walrave Van Henkelom, Wilhelm Willink, Jr., and Gerret Schimmelpenninck, Rutgert Jan's son. On April 26 they, by their attorney-in-fact, John Jacob Vanderkemp, whom the company had appointed as such and as the successor to Paul Burti, deceased, September 5, 1824, conveyed all their lands, tracts, pieces and parcels of land, tene- ments and hereditaments that had not been pre- viously conveyed, including all outstanding con- tracts for the sale and purchase of their lands in Armstrong, Indiana and Jefferson counties, to Alexander Colwell, Dr. John Gilpin, Horatio N. Lee, of the borough of Kittanning, Alexander Rey- nolds and David Richey, then of Madison town- ship, in this county, embracing 23,083 acres and 45

270

HISTORY OF ARMSTRONG COUNTY.

perches of unsold land, and about 55,000 acres sub- ject to executory contracts, for $50,000-the ven- dors not to be liable for the payment of money due or to become due on these contracts, or for any judgments, mortgages or other evidences of debt arising from any of these contracts. Reynolds entered into a conditional agreement with his co- purchasers, August 11, 1835, to purchase their sev- eral interests in about 21,000 acres of these lands for $26,130. By divers transfers that agreement was consummated, and these interests became vested in him and P. Jenks Smith, of Philadelphia. All the lands which were included in the purchase from the Holland Company, except about 1,000 acres, have been sold at such an advance that the last purchasers have realized handsomely from their ventures, besides a considerable amount still due them on executory contracts. Some of those lands have since become so valuable that they cannot now be purchased for less than twenty-six times the price for which Reynolds and his co-purchasers sold them.

The sketch of the Holland Company has thus far been confined to its operations east of the Alle- gheny river and Conewango creek. It remains to be stated what obstacles they had to meet and overcome in their purchases on the other side of those streams, in the presentation of which it is necessary to keep in mind the provisions of the act of assembly of April 3, 1792, entitled “ An act for the sale of vacant lands within this Commonwealth." The first section relates to the price and sale of lands within the purchase of 1768, east of the Allegheny river and the Conewango creek. The other sections relate chiefly to the sale and purchase of the lands north and west of the Ohio and Allegheny rivers, and west of the Conewango creek, and, among other things, fixed the price of those lands at £7 10s. per 100 acres to such persons as would settle, cultivate and improve them or cause them to be settled, cultivated and improved; required each tract not to contain more than 400 acres, its shape to be oblong, the full quantity of each warrant to be surveyed in one entire tract, and not to contain in front on any navigable river or lake more than one-half its length or depth, and ten per cent sur- plus to be allowed and paid for when the patent should be granted. The phraseology of the ninth section, and especially of its proviso, occasioned much difference of opinion as to the intent of the legislature, and, consequently, a great deal of liti- gation.

That section required that a warrant should not be issued or a survey made in that part of the state to vest any title in the lands there unless the

grantee had, before the date of his warrant, made or caused to be made an actual settlement thereon by clearing, fencing and cultivating at least two acres for every 100 acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing or causing a family to reside thereon for the space of five years next following his or her first settling of the same, if he or she should so long live; and in default of such settle- ment it should be lawful for the Commonwealth to issue new warrants, reciting the original ones, and that actual settlements and residence had not been made in pursuance thereof, and so often as default in those respects should be made, and that new grants should be made subject to all the regula-

tions in the act. "Provided always, nevertheless, that if any such actual settler, or any grantee in any such original or succeeding warrant shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his en- deuvors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be en- titled to have and to hold the said lands in the same manner as if the actual settlement had been made and continued."

Along with the requirements of that act should also be kept in mind the specially perilous con- dition of that part of the state, resulting from the then pending Indian war. The perils to settlers, or those who attempted to settle there, were fear- fully enhanced by the disastrous defeat of Gen. Harmar in October, 1790, and that of Gen. St. Clair, in November, 1791. It is a well established fact that settlements by the whites in that region were unsafe until 1796. There was, nevertheless, a great contrariety of opinion on the bench, at the bar, and among the people as to the requirements of that section and its proviso respecting the set- tlement to be made, and the persistent endeavors required to effect a settlement under these peril- ous circumstances, on those lands.

One portion insisted that the conditions of actual settlement and residence, required by the act, were dispensed with, on account of the prevention for two years after the date of a warrant by Indian hostilities, and that the warrant-holder was not bound to do anything further, but was entitled to a patent. Another portion insisted that the right under the warrant was forfeited at the ex- piration of two years, without a settlement, and that actual settlers might then enter on such tracts and hold them by making a settlement.

A great deal of litigation resulted from the con- trariety of construction of that act, which, for nearly

W. J. JACKSON.

MRS. W. J. JACKSON.

RES. OF WM. J. JACKSON.

271

MADISON TOWNSHIP.

a quarter of a century, was suffered to dishearten many people from settling that particular region, even after the perils from the Indian hostilities had ceased. It seems strange that the legislature, when it became apparent how great a difference there was in the construction of that act, did not so amend or supplement it as to relieve it from that difference and check the resultant evils. Chief Justice Tighlman intimated in Hazard's lessee us. Lowrey,* that the ninth section was " expressed with such obscurity as to have occasioned great diversity of opinion among men of the first abili- ties." And Justice Yeates in the hereinafter-men- tioned motion for a mandamus on the secretary of the land office said in reference to that act, he had hoped " that the difficulties attendant on the pres- ent motion would have been brought before the justice and equity of the legislature for solution, and not come before the judicial authority, who are compelled to deliver the law as they find it written, for decision." And further on in the same case, he continued : " Though such great disagree- ment has obtained as to the true meaning of this ninth section, both sides agree in this, that it is worded very inaccurately, inartificially and ob- scurely." It is passing strange that the legisla- ture did not, after those severe judicial criticisms, correct the faulty phraseology of that section and its proviso. Because legislative wisdom and acu- men were not thus exercised, the Holland Company, as well as numerous individuals, were involved in expensive litigation.

It was under that act that the Holland Company took out many of their warrants. They, like others, could not make the settlements required by the strict letter of that act, within two years from the dates of their warrants, on account of the In- dian hostilities. The board of property during Gov. Mifflin's administration construed that act as meaning that the warrantees were entitled to pat- ents after two years' prevention, and, with the advice of Attorney-General Ingersoll, framed a prevention certificate, setting forth that the war- rantee or settler, as the case might be, had been prevented from making a settlement on a de- scribed tract of land containing 400 acres or less, conformable to that ninth section and proviso, by force of arms of the enemies of the United States, and that he had persisted in his endeavors to make such settlement, upon which, when signed by two justices of the peace, a prevention patent, as it was called, was issued. This practice con- tinued until 1800, and under it the Holland Com- pany obtained numerous prevention patents. Gov.

*1 Binney, 166.

McKean was elected in October, 1799. The new board of property construed that proviso differ- ently from their predecessors, and their practice in granting such patents as not binding. Tench Coxe, who was then secretary of the land office, re- fused to issue any more of them. The company then moved the supreme court for a rule to show cause why a mandamus should not be awarded com- manding him to prepare and deliver divers patents on prevention certificates. The case* was fully argued at March term, 1800. The court differed in opinion. Chief Justice Shippen held that " the legislature meant to sell the remaining lands of the state, particularly those lying on the north and west of the rivers Ohio and Allegheny. The con- sideration was to be paid on issuing the warrants. They had likewise another object, namely, that, if possible, the land should be settled by improvers. The latter terms, however, were not to be exacted from the grantees at all events," ¿. e., in all exigen- cies that might arise. "The act passed at a time when hostilities existed on the part of the Indian tribes. It was uncertain when they would cease. The legislature, therefore, contemplated that war- rants might be taken out during the existence of these hostilities, which might continue so long as to make it impossible for the warrantees to make the settlements required, for a length of time, not perhaps, until after these hostilities should entirely cease. Yet they made no provision that the settle- ments should be made within a reasonable time after the peace, but expressly within two years after the date of the warrants. As, however, they wished to sell the lands and were to receive the consideration money immediately, it would have been unreasonable, and probably have defeated their views in selling, to require settlements to be made on each tract of 400 acres, houses to be built, and lands to be cleared, in case such acts should be rendered impossible by the continuance of the Indian war. They, therefore, make the proviso which is the subject of the present dispute." He then asks : "When were such actual settlements to be made ?" His reply is: "The same section of the act which contains the above proviso gives a direct and unequivocal answer to this question, ' within the space of two years next after the date of warrant.'" He then argues : "If the settle- ments were not made within that time, owing to the force or reasonable dread of the enemies of the United States, and it was evident that the parties had used their best endeavors to effect the settlement, then, by the express words of the law, the residence of the improvers for

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History of Armstrong County, Pennsylvania, Part 57

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