USA > Virginia > Rockbridge County > Rockbridge County > A history of Rockbridge County, Virginia > Part 4
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que te place they were lying on when he left. There is a statement that Hon called to I'mland and brought back a large company of settlers "This i very dultiul Such action was not necessary. He did advertise his lands. dad tw such effect that more than 100 families located on the Tract within the two vars. But immigrants were arriving at Philadelphia almost every week. sche trules to the number of hundreds, and efficient advertising was certain to bring the desired results. When Borden went back to his home near Winches- tor. He left h's papers with John McDowell, to whore house many of the pros- Jest rs came in order to be shown the parcels they thought of buying. Three years later he died en the manor-place he had patented in 1734
Bujamin Borden, Sr., came from New Jersey, where the name Borden- Un' commemorates an early settlement by the family. It is mamies that his education was mager The language of his will, which resembles that of the contract given in this chapter, is boyish and crude, and defective in spelling and gran mar The personalty inventoried in the settlement of his estate made a tel of $187. The house furnishings were simple and primitive, many of them Lag listed as "old" and of little value. The items include a servant man. two tallene and seventeen other herses, seventeen cattle, seven sheep, three small Lors, a silver watch scheduled at $10.42, a half-e izen clairs, and some carpenter to In realy neans Borden did not quite rank with some of the other carly antlers ci Frederick But as a business man he was shrewd. alert, and tactful. and was what would now he styled a "plunger." Besides "Borden's Great Traut," and several much smaller patents in the valley of the James, he owned larel in New Jersey and in several locahties in the Shenandoah. On his home- tall was a mill It is said that he came to the frontier as a trader, and he meretemally knew a good thing when he saw it Has prominence among the pocers in the Valley is reflected in the fact that be was a justice of Orange and afterward di Fil rick William Edmondson relates that "o'd Mr Borden ve cung and polpe," and that he had heard older men laugh in telling of Partie's intility of resource in meeting all objections Where the timber was sous le vas al' 15 sce "a fine young growth" Where the soil was poor, he "wrath oberved tre sheep walks "
Heilen Borden, Sr . was probably less than fifty years old when he died Pagotin. I. n. En Joseph, the last and being a small boy MIG Hid dinghies ecre Hanh, Martha, All. Rebecca, Deborah. IM l Elledethe Tour was already married, Hamah to Edward Rogers. MadMen Withas Fergles. Alle to Jacob Worthington, and Rebecca to a The Arts married James Pritchard After their father's
Jane Bek old came from Germany 1 1715, and lived until 1797. to figure
25
THE BORDEN LAND GRANT
prominently in the Borden litigation. The will left to Abigail, Rebecca, Deborrah, Lydia, and Elizabeth, "5,000 acres that is all good." out of the grreat tract on the James. The rest of his lands, excepting the homestead, which was willed to the sons, and in dower to Zeruiah, the widow, he ordered to be sold, and the proceeds divided equally between the widow. the sons, and six of the daughters. To Hannah, the remaining daughter, was given 800 acres of the homestead. The executors were the widow, Benjamin, Jr., and William Fernley, whose bond, with William Russell and John Hardin as sureties, was in the sum of 500 pounds. In 1745 the widow gave Benjamin, Jr., a power of attorney with respect to sales in the Great Tract, and the following year the latter came into exclusive control of it. The other sons conveyed their interest to Russell.
According to one writer, the elder Borden was an agent for Lord Fairfax in settling the Northern Neck. This is very possible. But the statement by Henry Ruffner that he was a son-in-law to Colonel James Patton is incorrect.
We are somewhat in the dark as to his prestige in securing so large a grant as the one in Rockbridge. He visited the colonial capital shortly before he met the McDowells. It is affirmed, and probably with truth, that he ingratiated him- self with the governor. That official, his son-in-law, and two other men were interested in getting into their personal control some of the land on the upper James. Mrs. Greenlee, sister to John McDowell, says these men assigned their interest to him in the course of a frolic, which of course had its inspiration in liquor. The younger Borden, during his administration of the estate, told Samuel McDowell, the son of John, that the estate was much in debt, especially to one Lauderdale, who seems to have been one of the original grantees. Mrs. Greenlee further relates that one Hardin, who may have been the same as the bondsman to the executors of the will of the elder Borden, offered James Mc- Dowell the unsold lands in return for a bottle of wine, provided McDowell would assume the liability for the payment of quit-rent. But Ephraim McDowell counseled against any such transaction, telling his son it might get him into trouble.
A silly story has been repeated time after time to the effect that Borden and Lewis visited the capital with a buffalo calf and presented it to Governor Gooch, causing that dignitary to be so tickled as to sign away the title to 100,000 acres of the public domain. The buffalo never roamed in the Tidewater, yet was plentiful in the Indian meadows of the Valley, and was necessarily known to the governor. Gooch, who was one of the best of the colonial executives, was too sensible a man to be carried off his feet by the present of a shaggy, ungainly, and ungrown beast. As for Borden, he was not the man to lead the calf all the way to Williamsburg, without feeling some assurance that the childish proceed- ing would be worth his while. A colonial land-grant, like the one made in favor
20
A HISTORY OF ROCKBRIDGE COUNTY, VIRGINIA
of Borden, was on stipulated conditions and with the concurrence of the Colonial Council.
It is now in place to tell how and for what announced purpose such a large grant came to be made to a private person who was without aristocratic birth or connections.
The immigrant to colonial Virginia, provided he was of age and could prove he had paid the cost of his passage from Europe, could claim a "head-right." entitling him to fifty acres of public land. He was further entitled to fifty acres for each male member of his household. He was required to settle on the land. to improve at least six per cent of the acreage, and to pay each year a quit- rent of one shilling for each fifty acres. On taking up a head-right, he paid a fee of five shillings. The tendency of this law was to fill Virginia with a sub- stantial class of citizens. The working of it was much the same as that of the present homestead law of the Federal government.
But the governor, with the concurrence of the Council, could grant a huge block of land to an individual, or a group of men acting as a company. The theory of the order of council was to settle within a stated time a minimum num- ber of families on the tract. The grantee was supposed to be restrained from charging more than a specified price per acre. He issued deeds, just as though the block was owned by himself in fee-simple. In practice, there was created a proprietorship, usually non-resident, which enabled men influential with the colonial government to levy a burdensome tax on the settler without rendering in return a corresponding benefit. Much of the public domain was thus cor- nered by these influential men. The settler had to pay their price or go on to the very verge of settlement. Many a person did so, and the frontier was pushed forward too rapidly for comfort or safety. Furthermore, the government is said to have been very lenient in enforcing forfeiture where there was a failure to comply with the conditions attached to the grant. The order of council method was monopolistic in its very nature. The headright method was equitable, and it assumed, which was ordinarily the truth, that the homesecker was capable of choosing land for himself.
In the case of Borden, there was a penal bond in the sum of 1800 pounds ($6,000). The grantee was to sell the lands at the rate of threepence (ten cents) per acre. Sometimes, indeed, he gave title for a smaller sum. But the rate exacted was sometimes much larger, as will appear from a study of Section 111. A petition to the Assembly, dated 1786, would seem to voice the prevalent opinion in Rockbridge. The petitioners believe the survey to contain a good deal of surplus land In reserving some of the most valuable tracts, the Bordens "accumulated a large fortune." A considerable portion was still unsold at the date of the petition, and like unappropriated land, was in great part free
27
THE BORDEN LAND GRANT
from tax. This was offered for sale at the highest price that could be secured. "Your petitioners have ever considerd this monopoly hard and oppressive, even under a monarchial government, where the natural rights of man are so much abused." They ask that the representatives of the proprietor be compelled to account for all arrears of taxes, and that the lands be disposed of at a reason- able price ; and that the grant be resurveyed so that the title to the surplus lands may be vested in the commonwealth.
The patent to Borden was not issued until November 6, 1739. It is based on the representation that a family had been located for every 1,000 acres of the grant. The acreage is set at 92,100, and this would indicate that the number of actual settlements was ninety-one, exclusive of those by the McDowell party. In consideration of building a cabin, the settler was given 100 acres, and had the privilege of buying additional land at the minimum price. Such parcel of 100 acres was called a cabin-right. These cabin-rights were of vital importance to Borden. Each one validated his own title to 1,000 acres of his grant. Mrs. Greenlee relates that the cabin-rights were at length counted and a return made to the governor. Benjamin Borden, Jr., affirmed that the number was 145. But Mrs. Greenlee says one person would go from cabin to cabin, and claim a cabin-right in each instance. It was immaterial where these claim-cabins were built. Mrs. Greenlee adds that she heard much of the doings of a young Mil- hollen woman, a servant to James Bell. She dressed as a man and saved five or six cabin-rights. She used a different Christian name at each cabin she appeared at. John Patterson, who made the count and kept tally with chalk-marks on his hat, was surprised to find so many Milhollens. Mrs. Greenlee does not commit herself as to whether she believed this sharp practice to have been instigated by the elder Borden. The junior Borden, in his answer in the suit of Bell v. Borden, denies that his father sought any advantage from fraudulent improve- ment. He says he believes it to be true that Bell "caused a servant wench of his to be dressed up in man's apparel or clothes, and show himself on one of the improvements he pretends to have made," and that at another time, Bell "caused the wife of William McCanliss, his servant man, to appear in his own proper person on a different part of the land, as the wife of another settler."
The surveying of the boundaries of the Tract was not done until after the counting of the cabin-rights. This circumstance will account for the extraor- dinarily irregular outline. More than sixty angles are described in the patent. The general survey was performed by James Wood, surveyor of Frederick county, assisted by John McDowell. McDowell seems to have surveyed some, at least, of the individual tracts, yet Mrs. Greenlee says one Beaty appears to have been the first man to survey land in the Borden Tract. One John Hart was also a surveyor. Separate parcels, however, were not always surveyed before pur-
28
A HISTORY OF ROCKBRINGE COUNTY, VIRGINIA
chase, but were described by general boundaries. James Buchanan says Ins father's land was paid for before survey, although certain boundaries were agreed upon. The younger Borden did not observe these bounds, although referees decided in his favor. Mrs. Greenlee says people sometimes squatted in the grant, and without first contracting with "old Borden." William Patton says that parcels passed from hand to hand prior to the making of any deed This circumstance helps to explain why the names of some of the settlers do not appear in the deeds issued by the Bordens.
The death of Benjamin Borden. Sr., left the proprietary interests in the Tract in much confusion. Many bargains with the new comers had been reached. bunt in rather numerous instances the settler was living on land to which his claim was incomplete. Judge McDowell very justly remarks that the business of the estate was intricate and very troublesome. The elder Borden had either sold or given away many tracts that there was no account of among his papers Disputes arose and some of the contestants made good their claims. The quit- rents coming due every year on the unsold portion of the Tract were a burden to the younger man. One deponent says a parcel was sometimes sold off merely to get the money for this purpose. It was the practice of the Bordens to sign no deeds until the purchase money had been paid in full. For some cause, the land purchased by Ezekiel Clements in 1740 reverted to the Crown seven years later
In 1742 Benjamin Borden, Jr., visited the Tract, spending his time at the home of John McDowell. When he came back, the year following, his father and John McDowell were both dead. The junior Borden was a young man and was at first viewed with coldness and suspicion. There seemed to be nothing in his bearing to set him above the generality of the settlers them- selves. It was said that he was illiterate, but this could hardly have been the case. He was not at first held in respect by Mrs. McDowell, whom he married about 1744. On his reappearance he entered upon the management of his in- Heritance He lived at Thorn Hill, afterward the Bowyer estate, which lite on Woods Creek two miles southwest of Lexington. That his home was just outside the Tract is explainable on the supposition-which is ahnost a certainty- that his wife, who e maiden name was Magdalena Woods, was a sister to Richard Words, who settled in this beautiful valley in 1738. Here in April, 1753, the sounper Borden died of smallpox. The disease was epidemie that spring, and Borden was the first person at his own home to contract it. His three daughters. his brother Joseph, the children of John McDowell, and several negroes also fell : 1, and one or two of his children died. Martha Borden, then a girl of about eight years, had a slow and techous convalescence. About 1770 she married Robert Harvey Mr Greenke, who was probably immune, nursed the patients at the Berden home
29
THE BORDEN LAND GRANT
The appraisement of the junior Borden's personality makes the following exhibit, the values being given both in Federal currency and in the colonial money of Virginia.
Roger (slave)
40р
$133.33
Mill (slave)
30p
100.00
Other slaves-value not given
13 horses
.63p 10s
211.67
26 sheep
6p 10s
21.67
One yoke of oxen
6p
20.00
8 milch cows
13p
43.33
3 calves
1p
As
4.00
32 hogs
бр
20.00
Nails
lp 11s
5.17
Case of pistols and holsters
1p
3,33
Still and vessels
23p
76.67
Implements, traps, smith's tools
14p
3s 6d.
47.25
Wagon gears
10p
33.33
3 linen sheets
1p 16s
6.00
Large table
8s
1.33
One dozen chairs
1p
8s
4.67
Bed and furniture
2p 10s
8.33
Silver watch
4p
13.33
3 wigs
1p 10s
5.00
Books
3p 6s 6d.
11.08
128 pounds steel, 77 of iron
4p 19s 8d.
16.58
Total, 235 pounds, 16 shillings, 8 pence ; equivalent to $786.11.
During the ten years he lived in the Tract, Benjamin, Jr., rose in the esti- mation of the settlers. In 1746 he became a captain of the militia, and in 1752 he qualified as a justice of the county court. He was somewhat frequently called upon to perform public business. Mrs. Greenlee says he appeared to be a good man and disposed to do justice to the settlers. His stepson, Samuel Mc- Dowell, says he was honest and upright, generally well spoken of, and gave satisfaction in his management of the estate. Such testimony is very strong, and yet there are statements that seem to conflict with those given by the stepson and his aunt. In 1748, the younger Borden was convicted by the Augusta court for giving false receipts for the payment of quit-rents. Three years later, Martha. the wife of James Dunlap, was fined for saying she would not believe him on oath. John Patterson, in making his will in 1749, claims seventy pounds as due him from Borden, and instructs James Patton to see that Borden does not wrong his wife and children. Borden's sister Deborah deposed in 1790 that her brother had treated Mrs. Worthington with much cruelty in word and manner. From the tenor of the declarations in a number of chancery suits, one is driven to conchide either that the plaintiffs were trying to "do" Borden, or that the latter
30
A HISTORY OF ROCKTRIXIE COUNTY, VIRGINIA
was evasive and dishonest in his dealings with them We cannot lightly believe that all the complainants could have been tricky and untruthful.
The suit of Downing v. Borden is a quite typical specimen of the litigation that arese after the death of the elder Borden. John Downing sets forth that John Patterson was a duly authorized agent to act for Benjamin Borden, Sr .: that through the said Patterson he purchased 300 acres on Galway Creek ; that one-half the purchase money was to be paid as soon as Borden should execute a good deed. and one-half at the end of twelve months. The elder Borden Having died before title had passed. Downing asked the son to make out a deed. complaining at the same time that his neighbor, George Moffett, had a mind to come over the creek running through the land. Benjamin. Jr., replied that Moffett should not come over, that Downing was in control and should go ahead with the improvement of his land. Downing says he has made considerable improvement, and has offered to pay the purchase money, but that Borden insists there was no bona fide purchase ; that Patterson was without authority, unless in case of a lease-right : that the agreement between Patterson and Downing was oral only, and that the proprietor is under no obligation to convey.
In the suit of Young v. Borden. Robert Young says Robert Crockett bargained with the elder Borden and paid one pistole* to bind the contract ; that be lumself, to whom Crockett had assigned his right, has paid in $10.82, yet without being able to get a deed. In 1750 Young petitioned that Borden should not acknowledge title to any of the land without his consent. The petition was allowed. In Patterson v. Borden, James Patterson says that the senior Borden made a verbal agreement with John Patterson, whereby the latter was to act as agent ; that when Borden visited the Tract, which he did frequently, he lodged with Patterson, who found his own provisions and also entertained landhunters ; and that Patterson attended the surveyor, for which service he was to have three and one-half shillings ( fifty-eight cents) a day. Borden refuses to pay any of these claims, falling back on the technicality of an English law of 1680 and saying that a writing was necessary. The case was dismissed in 1760 without award In Mitchell v. Borden, 1747. John Mitchell says that in consequence of a mimor, after the death of the elder Borden, that the son would not give tite to the places his father and the agents of the latter had agreed to convey. le linn elf and several others made preparations to move from the Tract. The younger Borden, finding his land would be depopulated, and in danger of lapsing for want of cultivation, publicly announced that he would perfect and confirm all such agreements Mitchell remained, but Borden sometimes offers some excuse for not making title and sometimes absolutely refuses. Borden rejoins
·$392
31
THE BORDEN LAND GRANT
that Mitchell did no more than make an entry with Patterson, whom he looks upon as an intruder. In Bell v. Borden, which was abated in 1751, James Bell says that eighteen cabin-rights were taken by himself and his servant, John Milhollen, and sixteen other men : Thomas Armstrong, George Henderson, John and Quentin Moore, Alexander, George, James, Robert, and Adam Brecken- ridge, John Bell, William McCanless, John Walters, Robert and Seth Poage, John Grove, and Daniel M'Anler. These settlers were to build and improve by April 1, 1738, and to be at no expense except the drawing and recording of deeds, and a fee of eight shillings for laying off each tract. The deeds were not forthcoming, and the settlers concerned threatened suit. The proprictor then agreed to make conveyance, but died before the deeds were executed. The younger Borden says he does not know of any improvements by these men, and denies that Bell has any right to the 200 acres claimed in behalf of himself and Milhollen.
The McDowells themselves had trouble with the proprietors. The senior Borden wanted John McDowell to select on Hays Creek the 1,000 acres he was to have for surveying. McDowell would not accept brushy upland which he deemed barren. He brought suit for a selection on Timber Ridge and won, to the chagrin of Borden, who wanted the land himself. Mrs. Greenlee's husband purchased on Turkey Hill, but the younger Borden resisted giving a deed, al- leging that the whole parcel was choice land, and "for the sake of peace" a portion of it was given up. Greenlee's title was confirmed by the court.
The lands remaining unsold after the death of the younger Borden werc considered of inferior quality. Yet for a long while, sales continued to be made by the executors, of whom Archibald Alexander was chief. A report of sales that ends in the year 1780, shows that up to that date nearly 300 parcels had been disposed of.
But Benjamin Borden, Jr., was not always the defendant in this maze of litigation. He himself brought many suits, usually to enforce the payment of purchase money.
As to Joseph Borden, Judge McDowell says he was a man "not of the best sort." The younger brother came to live with Benjamin, Jr., and went to school. The fall after the latter died, he went away by dark, not very well liked, and not made very welcome. After his recovery from the smallpox, he explored his brother's papers. His sister-in-law missed a bond of some 300 pounds, and when she accused him of the theft, he asked her in effect, what she was going to do about it. About twenty years later he again appeared in the Tract and told Samuel McDowell that he had bought out the claim of his sister, Mrs. Worthington. McDowell replied that Benjamin, Jr., had bought out the rights of his sisters-three of whom had spent about ten days in visiting him-
32
111STORY OF ROCKERUNE COUNTY, VIRGINIA
because he could not get the lands laid off according to the terms of his father's will. Joseph Borden insisted that Mrs. Worthington had never acknowledged the deed. To Joseph Walker, the absentee explained his abrupt departure in 1753. He told Walker he could not get on with his sister-in-law. A friendly servant took his clothes to the woods and caught for him a mare that was the leader of a herd As he rode away he was followed by a drove of horses. Walker told him such conduct was very dishonest, and asked him where he had been that he had not attended to his claims carlier.
However, Joseph Borden did pay the sister $300 for her interest in her tract of 1,000 acres, and because of this land he brought suit against his niece. Martha Harvey, and her husband. Robert. The almost interminable depositions and other proceedings during the period 1790-1807 fill two large volumes in the office of the circuit clerk at Staunton. The controversy centered for a while about a tract of 448 acres owned by an Edmondson, in the "New Providence barrens." The kernel of the whole trouble was the provision in the will of Ben- jamin Borden, Sr., that five of his daughters should have 5,000 acres that was "all good land." Judge McDowell deposed that as a boy he was a chain-carrier for the surveying parties in the Tract, and thus became very familiar with the ground. He said it was not possible to embrace 1,000 acres of choice land in a single survey, and that it would require from fifteen to twenty surveys to cover the total of 5,000 acres, Joseph Borden died in 1803 at his home in Iredell county. North Carolina, but the suit dragged its weary length along, and was at length merged into the suit of Peck v. Borden. It appeared in the docket term after term with monotonous regularity. The Borden heirs became more numerous, year by year, and the case never seemed ready for settlement. About 1885 the circuit judge ordered the funds in the hands of the court, amounting with interest to some $5,000, to be paid to the army of heirs The case was then stricken from tle docket. It had involved the legality of all the Borden titles, but no landhokler in the Tract was dispossessed.
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