USA > Virginia > Frederick County > Frederick County > Shenandoah Valley Pioneers and Their Descendants: A History of Frederick County, Virginia. > Part 24
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desire to go still deeper into western wilds, seem- ed to become part of the ambition of many Valley settlers; and later on their emigrant trains passed over the mountains and across the Ohio into the country that was to afford homes to Virginia families, whose descendants are now continuously returning to see the birth places of their ancestors.
After the town was extended by reason of the demand made by persons who had received grants from Fairfax for certain of the eighty lots he had set apart in 1752, as an addition to the town lots, previously surveyed by James Wood the founder of the town,-there were misunderstand- ings, existing to-day, concerning both Wood and. Fairfax, in relation to the laying out of the town -much difference of opinion regarding the ques- tion of priority. We are frequently asked how much land did Lord Fairfax give to the people for a town; and when did Wood give his addi- tion; and where were the boundaries thereof? Briefly answered, Lord Fairfax never gave the town anything! He seized the opportunity; and made the most of it. But fairness to the reader, as well as the performance of a self-imposed duty in compiling the history of the town, re- quires a statement of facts that may grate harshly on sentiment, and leave some to grieve over a wrong impression. We know that many of the present inhabitants of the old town have had handed down to them the belief that Lord Fair- fax actually sliced off from his immense hold- ings a sufficient quantity of land, and gave, or dedicated, it for the use of the citizens of the County for the purpose of a county seat, that eventually developed into the far-famed Valley City. Such impressions are wrong; and should have been corrected years ago. To prove this, the reader need only study record evidence,-dis- regarding all traditions relating thereto in the town's history-the records of the County and of the State, the Acts of the General Assembly, and files and reports of District and Appellate courts for a period of thirty years prior to 1808, and he will have revealed to him a litigant, who was unceasing in his efforts to disturb and de- stroy the first settlers in the Valley of Virginia, by his exactions in collecting his rents, etc.
As has already been stated, Lord Fairfax made his first appearance in Frederick County in 1749, though he had previously made himself well known through his agents. Chief of these were Robert Carter and William Fairfax (a cousin). They had powers delegated them to lease lands to settlers, and in many cases to make actual grants-all to be ratified by the proprietor, or to be annulled. Many of these leases and grants were held by inhabitants of the vicinity, where
131
CITY OF WINCHESTER, 1743-1850
the little village had been founded by James Wood. The courthouse and jail were already erected on what was known as the public lots (or public square), having its boundaries well defined-Loudoun Street on the West, Boscowan (Water) Street on the South, Cameron on the East, and private lots on the North '(Court House Avenue now being latter boundary). Lord Fair- fax on his arrival in Frederick County, estab- lished his court and recorder's office at Greenway Court; and at once opened his office to transact business with his retainers (as he often termed them), who were making the wilderness a habit- able country. About this time, he frequently visited the county seat; and soon joined Wood in his efforts to enlarge the town. His Lordship took possession of the situation, and had an ad- dition surveyed, to be laid off in lots of a half acre each, eighty in number, together with eighty out lots of five acres each, with streets. This addition is the same mentioned in the charter of 1752. The map, or diagram, of this addition, together with the charter, was kept in the Lord Proprietor's office until after his death, when it was found by Mr. Robert Mackey, who produced it in the county court at the December Term, 1794, it being fully proven, and ordered to be recorded; and was entered in Deed Book 24 (No. 2) on page 91. Every effort was made to find some evidence in the proprietor's office, of his dedication, or a deed for the public lots to the County; but none were ever found. He had made deeds or grants for all of the eighty lots in the new addition, and had them on file and on record in his office. Many of them were never seen until after his death. They were removed from his office in 1797 to the Office of the Register of Land, at Richmond, Va.
To show the spirit animating his Lordship, when undertaking to relieve Wood in his second effort to build the old Winchester, the author feels it necessary to give space for a copy of one deed. All are alike in description, requirements, consideration, etc. These grants were the sub- ject of much litigation by Fairfax, his heirs and assigns; therefore it is well for the reader to see the relations between the holders of the town lots and Fairfax. Some references will be made to the suits waged against the lot-hold- ers, to compel them to pay the stipulated rents. The inhabitants of the town in some cases de- nied the right of Fairfax to collect his annual rent of five shillings and, in some cases, quit rents. As will be seen by the terms of the grants referred to, and fully set forth in the grant to James Wood for Lot No. I, a copy of which is introduced here, the grantees were liable to eject- ment suits. Some of the inhabitants had enjoyed
quiet possession of tracts of land contiguous to the newly laid out town, under grants and leases formerly made them by the Colonial Government, requiring them to pay to the Lord Proprietor an annual rent of one shilling for every 50 acres; and where the grant was from Fairfax for tracts of land, one shilling sterling money for every 50 acres, regarded as quit rents; and it was very reasonable for such grantees to re- fuse compliance with this new order of things; for it will be seen that Fairfax by his ruling, ignored the Crown grants-sometimes called Colonial or Minor Grants, and arbitrarily re- quired the lotholder to pay him the yearly rent of five shillings sterling money for the half-acre lot in the town proper, including the five acre lot out on what Fairfax called the "Common." Although in every deed or grant, he says he had set apart a tract of land containing 439 acres as a common, here we find persons required to pay excessive rents for the use of lots on the Common, when Fairfax says he had given this land on the Common, for the use of the town- or, if they had free use of the lot on the Common that always went with the lot down town, then the latter was charged five shillings for the 1/2 acre, while only required by the Crown Grants to pay at the rate of one shilling for every fifty acres.
Injustice and unfairness seemed to be apparent in this new scheme of Fairfax's for adding to the town that Wood had founded eight years be- fore. These conditions were calculated to en- gender bad feeling between the Lord Proprietor and the town's people. And as the years went by; and the spark of freedom had been kindled into a flame that burst forth all over the land in 1776, it is not to be wondered at that old Frederick County, including Winchester Town, was ready to throw off the yoke of the British Lord, and refuse to pay any kind of rent. This, of course, resulted in almost endless litigation, which will be treated more fully in the Chapter on The Fairfax Suits. In the following grant, the reader has the exact language of all other grants for the eighty lots, by changing name of grantee.
"The Right Honourable Thomas Lord Fair- fax, Baron of Cameron in that part of Great Britain called Scotland, Proprietor of the North- ern Neck of Virginia; To All to Whom This present Writing shall come sends greeting: Know ye that for good causes for and in Con- sideration of the Rents and Covenants hereafter reserved and expressed, I have given, granted and confirmed, and by these presents for me, my heirs, and assigns, do give, grant and confirm unto Mr. James Wood of the County of Frederick
132
CARTMELL'S HISTORY
and Colony aforesaid, a certain Lott or half acre of Land heretofore waste and ungranted, scituate, lying and being in the Town of Winchester in the said County, Numbered (1) and bounded as in the survey and plat of the said town made by Mr. John Baylis. Also one other Lott or Tract containing five acres of Land Num. (53) heretofore waste and ungranted scituate in the County aforesaid, contiguous to the said Town being part of and included in a Tract of land containing (439) acres, given by me as a Com- mon for the use and benefit of the Inhabitants of the Town aforesaid and is bounded as by a plat of the said Common made by the said Baylis.
To Have and to Hold the said two recited Lotts of Land, together with all and singular ap- purtenances unto the said James Wood, his heirs and assigns forever, upon the conditions follow- ing (to-wit:) That the said James Wood, his heirs, etc., shall not build or cause to be built on the Lott No. (1) in the Town aforesaid, any dwelling-house, whose dimensions shall be less than sixteen by twenty feet, with a chimney thereto of brick or stone; neither shall the said James Wood his heirs, etc. erect or build, or cause to be erected or built any dwelling house, storehouse, warehouse, or other buildings of any nature or kind so ever, upon the said Lott (No. 53) in the Common aforesaid nor by any Act or Deed of his the said James Wood, his heirs, etc., or his or their last will and Testament in Writ- ing, suffer or permit the said Lott No. (53) in the Common aforesaid, to be separated or divid- ed in property from the said Lott No. (1) in the Town aforesaid, but that the same shall be kept with; and whenever the property of the said Lott No. (1) is altered, by Bargain, Sale, Gift, Mortgage, Execution, Will, or otherwise, pass, descend and go with the same, as parcel of, in- cident to and as an appurtenant thereof forever, for the benefit and advantage of the said Town, and shall be subject to the same Rules and Or- ders that other Lotts in the Common afore- said are subject to; Furthermore, yielding and paying to me, my heirs, etc., the yearly Rent or Sum of five shillings sterling Money, for the aforesaid two Lotts; provided also that if the said annual Rent should be behind and unpaid by the space of thirty days next after the same is become due and payable in any year and no sufficient distress upon the premises can be found, whereof the same may be levied, Then and in case the said Lotts shall become forfeit and vested again in me, my heirs, etc. In Witness Whereof I have hereunto sett my hand and seal. Dated this fifteenth day of May, in the twenty-sixth year of the Reign of our Sovereign Lord George
the Second, etc. Dmi. one thousand seven hun- dred and fifty-three.
Mr. James Wood Deed For
Lott No. (1) in the Town FAIRFAX." of Winchester
In the foregoing grant to James Wood, it will be seen that Lord Fairfax describes the Lot No. I as "part of and included in the Tract of Land containing 439 acres, given by me as a Common for the use and benefit of the Inhabitants of the Town aforesaid." As already stated in previous pages, Lord Fairfax never made a grant to the Borough or Town of Winchester in any form. While he says he designates the certain tract of 439 acres for the use of the inhabitants of the town, he had his surveyor John Baylis in 1752 to survey and lay off his addition of 439 acres to the town into 80 lots, from No. I to 80 inclusive, and into streets and alleys; and to each lot he added an "out-lot" of five acres-requiring 400 acres to comprise the out-lots, that he designated as the Common. As each of the town lots proper contained one half acre, they would require forty acres-altogether 440 acres instead of the 439, for the lots alone; and nothing for streets and alleys. And as Fairfax granted his lots to per- sons and required them to pay exhorbitant ren- tals annually, it is clearly seen that the assertion that Lord Fairfax never gave the town of Win- chester any part of his vast domain, is borne out by the simple statement of facts. The ground occupied by the Episcopal Church and graveyard, fronting on Loudoun and Boscawan Streets, was embraced in the original grant from Wood to the Justices for a County Seat. No record in any office, county, State or the Lord Proprietor's of any such grant. Strange to say, Fairfax made but one grant other than those to individual pur- chasers, and this was to the "Reformed Calvin- ists," dated May 15, 1753. It will be noticed this grant bears same date as the grant to James Wood, and to the following persons,-the list of whom is given to show who many of the lot- owners were at that date. It is proper, however, to state that some were not residents of the town :
NAME
LOT No.
COMMON Lor No.
Lemon 2
46
Alexander McDonald 3
Wood 4
10
Wood 5
3T
Weitreit 6
71
Henry Brinker 7
47
William Cocks 8
77
Thomas Woods 9
59
Hope IO
67
II
..
CITY OF WINCHESTER, 1743-1850
NAME
LOT No.
12
..
Robt. Craigen 68
58
Parkins
13
65
Jesse Bratten 69
3
William Cockran 14
25
Godfrey Hambert 70
60
Isaac Perkins 15
22
Martin Bostin 71
17
Marquis Calmes 16
15
John Steward 72
Lewis Neill
17
42
73
Thomas Bryan Martin
18
63
John Carlyle 74 34
James Pilcher
20
51
John Greenfield 76
18
John Jones
21
80
George Washington 77
16
Caldwell
22
George Bruce 23
61
Peter Sperry 80
74
John Jones 24
9
John Howard
25
Thomas Ryan Martin. . . 26
.27
28
29
John Hite
30
69
John Hite
31
30
Samuel Earle
33
34
..
35
. .
36
..
37
38
. .
James Lemon
39
Merder Palb
41
13
40
. .
42
. .
43
44
Capt. Geo. Mercer 45
..
David Stephens 46
66
Andrew Fretley 47
52
John Steward
48
78
Lodowick Castleman
49
48
50
..
Lewis Stephens 51
. .
Lewis Stephens 52
. .
. .
John Feif 54
55
. .
56
. .
William Cochran 57
36
Tobias Otto
58
..
..
John Greenfield
60
50
Edward McGuire 61
62
. .
..
64
65
Bush 66
Thos. McCloun 67
. .
John Harrow
75 29
The foregoing list was copied from the record and files of the Land Office, Richmond, Va. The blank spaces show no names or numbers on the record that can be filled, owing to their illegible state. It embraces every grant made by Lord Fairfax for any land within the boundaries of the Town of Winchester.
The present populace will be searched in vain for any of the names on this old list. All have disappeared from the archives of the town with the exception of three-McGuire, Wood and Jones.
The author at this point deems it consistent with his plan, to follow the foregoing line of vested titles, by a brief reference to the change wrought by the Revolutionary War, so far as relates to Lord Fairfax, who barely survived the War. By his will, of record in the Old County office 5th of March, 1782, he constituted his nephew, Rev. Denny Martin, then a citizen of England, the heir to his title and the remnant of his possessions in the Northern Neck. The point was raised at once that he, being a British sub- ject, could have no legal rights in America; and the estate so devised by Lord Fairfax was sub- ject to escheat laws, as will be more fully treated elsewhere. We simply add that this claim was dropped. Denny Martin-afterward Denny Mar- tin Fairfax-being an old man of 71 years, with no desire to change his residence from England to America; and his American possessions need- ing his personal attention, which he could not give, and "for divers other good causes and val- uable considerations," he, by his deed of Aug. 30, 1797, (of record in the Genl. Court at Rich- mond) conveyed to James M. Marshall "all and every of those divers tracts, pieces and parcels of land, being part and parcel of the proprietary of the Northern Neck of Va., with all benefi- cial right and interest of whatsoever nature the same may be." Of course, this embraced all the claims for rent then remaining unpaid for a
70
number of years. Mr. Marshall the new Amer-
2
ican owner of the remnant of the once great
133
COMMON LOT No.
NAME LOT NO.
COMMON LOT NO.
. .
19
76
Christopher Wetsell 79
5
21
59
..
. .
32
. . 68
25
Lewis Stephens 53
59
4
63
. .
. .
.
134
CARTMELL'S HISTORY
Northern Neck, guided by his legal knowledge, his glowing patriotism, and his high regard for equity, discovered that no legal title was vested in Frederick County and the town of Winchester, for what has been designated the Public Lotts, or court house and market square-the Public buildings, consisting of the Court House, two jails, clerk's offices, market house, public warehouse, etc., having had the uses thereof since 1744, when Wood laid out the ground for this purpose as the county seat. Mr. Marshall acted promptly; and brought the status of this case before the Gen- eral Assembly in 1799, suggesting a plan by which a legal title could pass. And the General As- sembly by an Act authorized him as the holder of the legal title, to make conveyance thereof to such persons designated by the Act to receive the title. And as there is but little known by the public generally relating to this transaction, we deem it best to give the full copy at this point :
(Thomas Lord Fairfax, Will. Book No. 4, page 583.)
: "IN THE NAME OF GOD AMEN I, The Right Honorable Thomas Lord Fairfax, Baron of Cameron, in that part of Great Britain called Scotland and Proprieter of the Northern Neck of Virginia, do make and ordain this my Last Will and Testament in manner following, that is to say, I do hereby subject all my real and personal estate to the payment of my debts and legacies give and devise all that my undivided sixth part or share of my lands and plantations in the Colony of Virginia, commonly called or known by the name of the Northern Neck of Virginia, with the several advowsons right of presentations thereto belonging or appurtaining I have therein with ye Messuages and Tenements buildings hereditaments and all other the appur- tenances thereto belonging, all or any part where- of being formerly the estate of the Honourable Alexander Culpeper Esquire, deceased together with all other lands and tenements. I have am possessed of, or have a right too in the said Colony of Virginia, to the Rev. Denny Martin, my nephew now of the County of Rent in Great Britain to him his heirs and assigns for ever if he the said Denny Martin, should he be alive at the time of my death, but in case he should not. Then I give and devise the same and every part and parcel thereof to Thomas Bryan Martin, Esquire, his next brother now living with me to him his heirs and assigns forever and in case of his death before me, I give and devise the same and every part and parcel thereof to my other nephew Philip Martin, Esquire, brother to the aforesaid Denny and Thomas and to his
heirs and assigns forever provided always and upon this condition, that the said Denny Martin if alive, at the time of my decease, or in case of his death, the said Thomas Bryan Martin, if he should be alive at the time of my death, the said Philip Martin, if he should be alive at the time of my decease, shall pay or cause to be paid to my nieces Frances Martin, Syvella, and Ann Su- sanna Martin, and to each and every of them that shall be living at the time of my decease an annuity of one hundred pounds sterling during their and each of their natural lives and further that he the said Denny Martin, or he to whom the said sixth part of the said Northern Neck shall pass by this my will shall procure an act of Parliament to pass to take upon him the name of Fairfax and Coat of Arms and whereas I some time since gave to aforesaid Thomas Bryan Martin, the Plantation or tract of land I pur- chased of John Borden, containing upwards of six hundred acres which gift I hereby confirm, and ratify to him his heirs and assigns forever I also give and bequeath to him the said Thomas Bryan Martin, all the stock of cattle, sheep, hogs, implements of husbandry household goods and furniture now or shall be at the time of my de- cease, on the farm or plantation whereon I now live called Greenway Court. I give devise and bequeath to my aforesaid three nephews or such of them that shall be alive at the time of my decease, to-wit Denny Martin, Thomas Bryan Martin, and Philip Martin, all my negro slaves that I shall die possessed of to be equally divided between them share and share alike, and whereas I did in a late will now cancelled give a con- siderable pecuniary legacy to my brother the Honourable Robert Fairfax, Esquire, which sum of money at his earnest desire and request I have since paid him therefore I now only give him the further sum of five hundred pounds sterling as memorial of my affection and to buy him mourning. I also give and bequeath to my sister Francis Martin, five hundred pounds sterl- ing to buy her mourning. All the rest and resi- due of my estate both real and personal not here- inbefore disposed of I give devise and bequeath to my elder nephew the aforesaid Rev. Denny Martin, his heirs and assigns forever AND LASTLY I do nominate and appoint my said nephew Thomas Bryan Martin, Peter Hog, and Gabriel Jones, both of the County of Augusta in the Colony of Virginia, my executors fully relying on their fidelity and integrity to see said trust hereby reposed in them faithfully and truly executed. I do hereby give and bequeath to each of the said Peter Hog, and Gabriel Jones the sum of five hundred pounds current money of Virginia, apiece, and do direct that my execu-
.
135
CITY OF WINCHESTER, 1743-1850
tors aforesaid give no other security to the Court where this my will shall be proved but their own bonds and that they shall not be lia- ble for each others transactions but only for their own nor be liable for any unforseen casual- ties or unavoidable accidents but only for willful negligence and malfeazance I likewise direct my estate may not be appraised but only inventoried.
In witness that this my last will and testa- ment containing two sides and part of a third of a sheet of paper, I have hereunto set my hand and affixed my seal the eight day of No- vember one thousand seven hundred and seventy- seven.
FAIRFAX, (SEAL).
Signed sealed and published by the testator the Right Honourable Thomas Lord Fairfax as and for his last will and testament in the pres- ence of us, who in his presence and in the pres- ence of each other, have hereunto set our names as witnesses :
JOHN HITE, ANGUS McDONALD, RICHARD RIGG, JOHN SARGEANT, THOMAS SMYTHER.
5th October, 1778, Republished by the Right Honourable Thomas Lord Fairfax in the pres- ence of Isaac Zane, Daniel Field.
WHEREAS since the making of my last will and testament dated the eight day of November, 1777, which I hereby confirm excepting the alter- ations herein after mentioned in this instrument of writing which I intend as a codicil and to be taken as such and as part of my said will First That the negro slaves left in my said will to be equally divided between my nephews Denny Martin, Thomas Bryan Martin, and Philip Mar- tin, Esquires, shall be divided into four equal parts instead of three one-fourth part thereof I give and devise to Bryan Fairfax, Esquire, my intent and meaning being that he shall have an equal share or part of my said negroes with my aforesaid three nephews AND WHEREAS in my aforesaid will I have bequeathed an annuity of one hundred pounds sterling to each of my three nieces Frances Martin, Syvella Martin, and Ann Susannah Martin, during their several lives I do hereby devise and bequeath that upon the death of Francis Martin her annuity of one hun- dred pounds sterling be given and continued to the second child of the aforesaid Bryan Fairfax, during his or her natural life and that upon the death of Syvella Martin, the annuity of one hundred pounds sterling bequeathed to her be given and continued to the third child of the aforesaid Bryan Fairfax, during her or his nat- ural life, and further upon the death of my other
niece Ann Susannah Martin, the annuity of one hundred pounds sterling bequeathed to her be given and continued to the fourth child of the said Bryan Fairfax, during his or her natural life, and further and lastly I do hereby direct the sum of five hundred pounds sterling money of Great Britain to be paid to each of my two executors mentioned in my said will instead of the sum given them in current money.
In witness that this codicil is to be annexed and taken as part of my aforesaid will, I have set my hand and affixed my seal this 27th day of November, 1779. FAIRFAX, (SEAL).
Signed, sealed and published by the testator The Right Honourable Thomas Lord Fairfax, in the presence of us, the subscribers as a codicil to his last will and testament and annexed there- to.
ROBERT MACKY, PETER CATLETT, JOHN S. WOODCOCK, JOHN HITE
At a Court held for Frederick County the 5th day of March, 1782. This last will and testament of the Right Honourable Thomas Lord Fairfax, deceased, was proved by the oaths of John Hite, Richard Riggs, Thomas Smyther, witnesses thereto and the codicil thereunto annexed was also proved by the oaths of Robert Macky, Peter Catlett, John S. Woodcock, and John Hite, wit- nesses thereto are ordered to be recorded and upon the motion of Thomas Bryan Martin, and Gabriel Jones, surviving executors therein named who made oath according to law, certificate is granted them for obtaining a probate thereof in due form whereupon they entered into and ac- knowledged bond conditioned as the law directs.
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