Rockingham County, Virginia

Court Case Involving Land Inherited from Andrew and Francis Erwin

This court case was brought by Jacob Clements Erwin and his brother, Andrew, over a dispute about land they had inherited from their father Francis, who inherited it from his father, Andrew.

Their grandfather, Andrew Erwin, married Anne about 1742-1743, the widow of James Patterson. James and Anne Patterson had several children who lived with Andrew and Anne Erwin after their marriage. They had one son together, Francis. James Patterson (from Chester County, Pennsylvania) had previously purchased two tracts of land in Virginia. After his death and Anne's marriage to Andrew Erwin, they lived one of these tracts of land, which Andrew bought. John Ervine, Andrew's brother, bought the other tract. In 1756, Samuel Patterson made a claim for these tracts of land. Andrew Erwin and Samuel Patterson agreed to let the claim be settled by arbitration. Andrew Erwin was awarded the land and required to pay Samuel Patterson 40 pounds.

After the death of Francis (about 1802), the land was inherited by his sons, Jacob Clements and Andrew. In 1806, Jacob Clements & Andrew came to understand that the sons of Samuel Patterson (William, James and Samuel) were about to make a claim to this land and initiated a suit asking that the court decree their rightful ownership of the land.

The court ruled in favor of Jacob Clements & Andrew Irvine, stating that even though there may have been fraud involved, too much time had passed to "go safely into an enquiry".

Source:Augusta County, Virginia, Chancery Causes, Case 1806-060¹⁰²¹⁶

To the Honorable John Brown, chancillor of the Western District of Virginia

In the year 1748, on the 20th of September, a patent for one hundred and fifty acres of land, lying on the Long Glade then in the county of Augusta, now of Rockingham, _____ from the Governor of Virginia, to Andrew Erwin, the grandfather of your orators, Jacob Clemons Erwin and Andrew Erwin. Andrew Erwin, the grandfather, was then in possession of this land, and he with those claiming under him have continued in it’s peaceably enjoyment from that day to the present. Your orators grandfather died many years since and left Francis Erwin his only child the devisee of this land – Francis Erwin was the father of your orators – he died some years since, and devised this land to them. By this devise they now hold and claim title.

Your orators have been informed that some few years after their grandfather had obtained a patent to this land a certain Samuel Patterson set up some claim therefor, under a title which he devised from his father. They have also been informed and believe, that this claim was submitted to arbitration about the year 1756 or 1757 – that the arbitrators awarded that their grandfather should pay to Patterson the sum of £40, and hold the land and that this sum was paid, for which Patterson gave a receipt in full. Time however has not handed down the receipt to your orators. They believe it is lost, but hope they shall be able to prove its existence. On of your orators, has been, in the possession of one of the defendants hereafter to be name, an arbitration bond, entered into between Andrew Erwin, their grandfather, and Samuel Patterson, dated the 16 of December 1756, and which, though it does not specify the particular subject of reference, they suppose was intended to apply to this land. From the date of this arbitration and ___ from the date of the patent, until about two years since, Samuel Patterson resided in the county of Rockbridge, not more than perhaps thirty or forty miles from the land, and during all this time he acquiesced in the title of your orators and their ancestors, making no sort of claim, after the decision of the arbitrators.

But now, that the land has been improved, into great value, now, that Samuel Patterson, with the grandfather and the father of your orators, are at rest in their graves, and now, that it might be reasonable to expect that time had left no memorial of the transactions which had once granted (?) the possession of the land, the sons of Samuel Patterson threaten (?) to renew his antiquated claim and to disturb your orators, in the peaceful enjoyment of their patrimony. Your orators know not the precise nature of the claim, thus set up, nor whether there are any circumstances belonging to it, which can have preserved its legal or equitable existence through this great length of time, in despite of the statute of limitations – but they hope, that the remnants of testimony, which have been providentially preserved to them, coming in aid of this long, uninterrupted possession, will enable them to repel the force of any claim, however strong it may originally have been. Therefore, to avail themselves of this testimony whilst it may yet be had, whilst there is a probability of opposing it with effect, and to obtain a quieting decree from your honor, your Orators have instituted this suit.

William Patterson, James Patterson and Samuel Patterson are the sons and devisees of Samuel Patterson deceased, who threaten to disturb your orator’s title. It is therefore, prayed that they may be made defendants to this suit, - that they may be compelled to answer this bill on oath, to discover the full nature of this claim, to say whether they have not understood, from their father or others, and whether they do not believe that this claim was once refered to arbitration that there was an award, in pursuance of that arbitration, acquiesced in, and performed by both parties, or what they have heard, to know, or believe, upon the subject of this award. That they may be compelled to produce the arbitration bond, above mentioned, and say whether they do not believe it was entered into, with a view to the land now in question - & and that this court will ___? the pretended claim of the defendants & decree to your orators the quiet enjoyment of their possession, or will grant such other relief, as is equitable and just.

s/__Johnson p. 2

The joint answers of William Patterson, James Patterson & Samuel Patterson to the Bill of complaint exhibited against them in the Chancery Court of Staunton by Jacob Clemens Erwin and Andrew Erwin -- These respondents saving to themselves all proper exceptions to the Complainants Bill for answer there to state:

That they are the only children & heirs of Samuel Patterson late of Rockbridge County and that the said Samuel they always understood was the eldest son & heir of his father James Patterson. They further say that it is true they were lead to believe from the declarations of their father in his lifetime & what they have heard from others that he was justly entitled as well to the tract of land mentioned in the Bill and to another tract hereinafter mentioned; as they have heard him say that he was entitled thereto if he had justice done him and have been informed by others that he had declared the same to them adding that he never would relinquish the same in his life. Your respondents neve heard from their said Father what the nature of his claim was, nor did they ever hear him speak of the arbitration & relinquishment of his right stated in the Bill, but on the contrary he always insisted that the land of right did belong to him. It is true your respondents have discovered amongst the papers of their Father an arbitration bond, but they know not what were the disputes submitted thereby nor do they know whether any award was made thereon & insist that the plaintiffs must prove such award if it did exist. The Bond is the only paper they find & herewith exhibit it as part of their answer. Marked A

Your respondents further state that the fullest & most authentic information they have had on the subject of their Fathers right to said land they have received from a certain John McGill at present of the State of Kentucky, whose information they have lately procured, have had the same sworn to that in case the said McGill, who is aged, should depart this life before his deposition can regularly be taken, that the same might be entitled to greater weight than a mere casual conversation. Your respondents refer to this affidavit as containing all the information of importance which they have received on the subject of the nature of their Fathers claim to sd. land, which they hereto annex - marked B

Your respondents are advised that the title of their Father to said lands was originally good & such as he could not be divested of without an agreement in writing executed on valuable consideration. That an arbitration & award if such had been made expressly on the subject of the right to said land (but which they cannot admit) cannot divest the right to land. But that if the arbitrators undertook to award respecting the land on the bond above exhibited they certainly transcended their powers & consequently the same was void. They further represent that from a memorandum of the ages of the family in the Bible of their grandfather that their father was born on ___ of April 1735 consequently was barely of age at the time of the pretended arbitration.

They have been informed also that about ten or eleven years before this the said Erwin had sold the other tract, & purchased that in dispute himself as stated by said McGill.

That this fraud upon the heir should afterwards be attempted to be salved over & confirmed by an arbitration with a youth just of age under the pretext of setting an Executors account as tho the lands had been sold as personal property, it is believed will not meet the approbation of a Court of Equity, could it even be proved that the price of the land so sold - or rather so taken - had actually been paid in pursuance of the award - but even this your respondents cannot admit was the fact. By information your respondents father when he came of age was in law & justice entitled to two valuable tracts of land. How has he been deprived of those rights? The person who ought to have protected them took the one half to himself, gave the other half to his brother & because providence permitted him long after to live & enjoy property so acquired & his representatives claim it as his right.

Your respondents further state that they have understood & believe that a very great inducement with their father to submit so long to the unjust proceedings of Andrew Erwin arose from the great harshness & ill treatment of the said Andrew to his Mother & the rest of the family who resided with her & sd. Andrew - well knowing that their condition would be worse than it was were he to assert his claim, and that through tenderness to his mother younger brother & sisters he forebore a dispute with said Andrew.

Your respondent will endeavour to procure copies of the original entries & surveys made by their grandfather & exhibit them as part of their answer, and pray that the complainants may be compelled to exhibit their patent & any other papers in their knowledge or possession & will hope that no length of time & not depth of stratagem (?) will support a claim originating in fraud & a most palpable violation of trust, but that your honor on a full view of the case will direct a conveyance of sd. lands to your rspondents, & institute such enquiry as to the other tract as will put your respondents in the possession thereof or the value out of the estate of sd. Andrew & that they may finally have their costs ____ ____.

Rockbridge County, April 5th 1806

This day William Patterson, James Patterson & Samuel Patterson made oath in due form of law to the above answer before me a Justice of the Peace for said County.

James McDowell

Decree

The court admitting that no length of time will sanctify a fraud, is nevertheless of opinion that it may be sometimes too late to go safely into an enquiry respecting one, and that the present case is of this last description. But if an enquiry could be safely made, that the evidence of an arbitration & settlement (?), in the year 1756, as proved in the cause, must especially at this late day, be a perpetual ___ to the claim of the defendants. It is therefore adjudged & that the plaintiffs & all claiming under them, be forever quieted in the possession & enjoyment of the land in the Bill mentioned, against all claim or demand whatsoever of the defendants under any right which they may set up to the same under their father Samuel Patterson & that the plaintiffs recover from the defendants their costs &c.

Frances Curry being duly sworn Deposeth and saith

That she is certain there was an arbitration respecting the land now in dispute and that there was Forty Pounds awarded to the said Samuel Patterson as she always understood and that she remembers (?) of Andrew Erwin getting (?) four or five head of beef cattle from the father of this Deponant which she understood was to pay the ballance of the forty pounds awarded to the said Samuel Patterson.

Question by the Defendant: did Andrew Erwin act as Executor to the Estate of James Patterson

Answer: I never understood that he did

And further this deponant saith not.

Subscribed and sworn before us this 16th day of Sept 1805.

Alexr Robertson
Jno. Matthews

In obediance to a commission from the Chancery District Court holden at Staunton to take the depositions of John Blair, Edward Erwin & Frances Curry on a suit now depending in such Court between Jacob Clements Erwin and Andrew Erwin Pltffs. and William, James & Samuel Patterson Defts. we have therefore assembled our selves and the witnesses at the house of William Curry in the County of Augusta on the sixteenth day of September 1805, the plantiffs and one of the defendants present. Edward Erwin being first duly sworn on the Holy Evangelist deposeth and saith; That he understood that about 1740 James Patterson the present defendant’s grandfather entered a piece of land the present land now in dispute and soon after died. Andrew Erwin grandfather of the present plantiffs married the widdow of the said James Patterson and bought the said land now in dispute from the person that acted as guardian for the orphans and the patent or grant came out in the name of Andrew Erwin, the grandfather of the present plaintiff. The children of the said James Patterson went to live with Andrew Erwin which married the widdow of the said James Patterson deceased. This deponent further saith from his own knowledge that after Samuel Patterson came of age which was soon after the said James Patterson Deceased he claimed the said land now in dispute as heir at law of his father the said James Patterson, deceased. The said Andrew Erwin and Samuel Patterson after disputing agreed to leave the dispute to the determination of man. The men met and unanimously agreed and did award that the said Andrew Erwin should pay to said Patterson Forty Pounds, some time afterwards, perhaps the next year Andrew Erwin and Samuel Patterson came to the father of this Deponent and with them Capt. Ephraim Love at the request of Andrew Erwin and Samuel Patterson the father of this deponent and drew a piece of writing between them the purport of which in the first place Samuel Patterson acknowledged that he rec’d the forty pounds awarded to him by the arbitrators as a full satisfaction for said land, secondly did relinquish his claim to said land and also bound himself in a penalty to warrant and defend said land to said Andrew Erwin and his heirs forever against any person claiming under him the said Patterson and signed said writing. Said Andrew Erwin had a son named Francis soon after said Francis was married and took a sore turn of sickness he was unsensible and expected to die. Rebecca Stephenson, sister to Samuel Patterson came to me and said she was requested by Samuel Patterson, her brother, and Mary McGill, her sister to ask me in case the said Francis Erwin died without a Will if I would relinquish my claim to the land now in dispute. I answered her I thought they were rither fast they should have let him been dead that I hoped he would live to enjoy himself.

Question by the Plttf: Did both parties meaning Andrew Erwin and Samuel Patterson appear to be satisfied with the award of the arbitrator?

Answer: Samuel Patterson expressed himself fully satisfied. Andrew Erwin said he thought it was hard as he looked upon it that he had paid the full value of the land before but as he had left it to men he would live by it.

Question: Did you ever understand that the parties ever went to law concerning the dispute.

Answer: I never understood that they did.

Question by the Deft: How old may you be at this time?

Answer: In the sixty fifth year of my age, and further this deponent saith not.

Sworn to subscribed before us the day & year above written.
s/ EDWARD ERWIN

Witnessed: Alexr. Robertson
Jno. Mathews

John Blair being duly sworn deposith and saith:

That he remembers to hear of an arbitration between Andrew Erwin & Samuel Patterson respecting the land now in Dispute that he understood that Samuel Patterson was agreed to the arbitration and that he understood that Andrew Erwin was rather dissatisfied with the arbitration but as the arbitrators had made it so he would abide by it and he understood from Samuel Patterson that he the said Samuel Patterson had brought a set of cloaths to the father of this deponant which cloaths was in part pay of the award of the arbitrators for said land now in dispute.

Question by the Plttf: Was the set of cloaths which Samuel Patterson brought to your father to be made a costly suit or not

Answer: it was a good suit of cloaths

Question: did you ever hear Samuel Patterson lay any clame to the land now in dispute after the arbitration

Answer: I did not and further this deponant saith not.

Subscribed & sworn before us th16th September 1805.
s/ John ?

Witnessed: Alexr. Robertson
Jno. Mathews

The commonwealth of Kentucky Lincoln County to wit the deposition of John Magill Senr taken at the house of Hugh Magill's in County and State aforesaid on the eleventh day of October in the year 1805. This deponant upon oath deposeth and sayeth that about the year 1740 a certain James Patterson of Chester County Pennsylvania came to Virginia, took up two tracts of land on the Long Glade by entry which was then in Orange County and James Woods was surveyor. One of the tracts of land adjoined James Magill. The other tract Edward Ervine & William Curry lived on. When I left that country in the year 1783. The sd. James Patterson returned home to Pennsylvania and died. His widdow Anne Patterson Administrated on his estate in Chester County and soon after moved to Virginia and settled on that tract of land that Francis Ervine his son after lived & died on. The sd. Anne married Andrew Ervine & sd. Andrew settled with her on sd. tract. Soon afterwards they made a ___ of sd. Pattersons property with said track of land they then lived on and sd. Andrew bought sd. track at about twenty pounds. The other track soon aftwerwards they sold to John Ervine. I do not remember for what sum. Sd. John Ervine then went to the surveyors office and go out the two plats that was in sd. James Pattersons name and brought them to the sd. Anne and was assigned over to sd. Andrew Ervin and sd. John they then got out patents in their own names. Sd. James Patterson had two sons Samuel and James. Samuel was the oldest son and Matthew Edmonds was his guardian. I was guardian for sd. James myself. Sd. Samuel when out of his apprentiship he then contended for his fathers land with sd. Andrew and they had an arbitration about it and he was alowed some triffle I dont no what. Sd. Samuel I don't remember as he ever did anything more in it for I think I should have known it as he lived with me from the time he was out of his apprentiship untill he was married. Sd. Mathew guardian to sd. Samuel was not at the arbitration as I remember nor had no hand in it. I was at it and did not approve of the proceedings of the arbitration but was not concerned in it.

I do hearby certify that the above deposition was taken at time and place aforesaid given under taken at time and place aforesaid given under my hand this 11 day of October 1805.

s/ John Magell

The commonwealth of Kentucky Lincoln County (to wit) Agreeable to a ? from the honorable Districk Court holden at Stanton State of Virginia to us directed we have proceeded to take the deposition of John Magill Senr taken to be read as evidence in a suit depending in the said Court wherein Jacob Clements Erwin and Andrew Erwin is plaintiffs and William Patterson, James Patterson & Samuel Patterson defendats. He being of lawfull age first duly sworn he deposeth & seth that about the yar 1740 that certain James Patterson of Chester County State of Pennsylvania came to Virginia and took up two tracks of land on the Long Glade by entery (?) which tracks adjoined James Magill & John Erwin, the other lay higher up the glade & adjoined sd. John & Edward Erwin Senr. The former track Francis Erwin Senr (?) lived on when I left that Country in the year 1783. The lat[t]er track Edward Eriwn Junr. and William Curry lived on at sd. time. The said James Patterson returned to Pennsylvania and died. His widow Anne Patterson administrated on the estate in Chester County & soon moved to Virginia and settled on the lower track of land above mentioned and said Anne Patterson soon after her removal married Andrew Erwin and after marriage she maid a sale of sd. James Patterson's property together with the sd. lower track of land that they then lived on and sd. Andrew bought sd. track of land for about twenty pounds. The upper track of sd. Patterson's land said Anne and Andrew Erwin sold some time afterwards to John Erwin sd. Andrews brother but the sum the got I do not remember, but sd. Andrew and John Erwin went and gout out pattents in their own names but how the obtained them I do not know but have good reason to believe that Anne Patterson otherwise Erwin assigned over the platts of surveys to said Erwins. Some time after the above transaction took place Matthew Edmonson became guardian for Samuel Patterson oprhaned and heir of the above mentioned James Patterson and this deponant became guardian for James Patterson second son of sd. James. Their pattents several years before this was any guardians appointed for said rphans and this deponant further saith that Edward Erwin and Frances Curry wife to William Curry is the two oldest children of the said John Erwin and that the sd. Edward & Frances got the upper track of land described as above from their father John Erwin and further this deponant saith not.

s/ John Magill

The above depos[it]ion was taken swort to and subscribed before us Valentine Peton and William Hamilton two of the Jutice of the Peace in and for the County of Lincoln at the home of Hugh Magills in said county & state of Kentucky on the 8th day of May 1806.

s/ Val. Peyton
Wm. Hamilton

Pursuant to a commision to us directed from the Chancery District Court of Staunton we have this 21st day of June 1806 at the dwelling house of Benjamin Harrison in the County of Rockingham agreeable to a notice herewith inclosed proceeded to take the depositions of sundry witnesses to be read as evidence in the said court in a suit depending between Jacob C. Erwin & Andrew Erwin plantiffs and William Patten & other defendents. And first Benjamin Harrison a witness of full age being first duly sworn deposeth & saith:

Questions by pltffs: Do you not believe that twenty pounds the price given by Andrew Erwin originally for the land in dispute was at the time of the purchase the full value of the land

Answer: I do

Question: were you acquainted with Robt Cravens, Thos Gordon, Ephraim Love, Abraham Smith, James Bell & Archibald Huston

Answer: I was.

Question: What idea have you of their fitness to act as arbitrators in any controversy which might have fallen out amongst their neighbours

Answer: They were men as well qualified as any at that time in the neighboushood & were frequently called on for that purpose

Question: What do you suppose might have been the value of the land in dispute in the year 1756

Answer: I should suppose it might have been about fifty pounds

Question: Do you suppose that the tract of land now in dispute was at the time that Andrew purchased it considered as first rate land

Answer: As I understand the boundaries of the land in dispute I think it was not and further this dept. saith not.

s/ Benjm. Harrison

Mary Harrison another witness of full age being duly sworn deposeth and saith:

Queustions by Pltfs: Do you recollect at what time our grandfather Andrew Erwin died

Answer: From the circumstance of my having a son born on the day after his burial whose age is on record I am able to answer that he was buried on the 3d day of Feby. 1765 and further this dept. saith not.

s/ Mary Harrison

Benjamin Erwin another witness of full age being duly sworn deposeth and saith:

Questions by pltfs: Do you remember of an arbitration taking place between Saml. Patterson & Andrew Erwin our g. father respecting the land now in dispute & what the award was

Answer: I recollect the arbitration; & always understood that 40 pounds was awarded by the arbitors to Patterson & that Erwin thought it was too much

Question: Did you conceive that the parties considered this award as a final settlement to their dispute

Answer: I thought they did, nor have I ever heard any more of Patterson's claim until lately

Question: Have you not understood that our grandfather Andrew Erwin got some cattle of your Father which were given to Patterson in discharge in part of the forty pounds awarded him for the land

Answer: I have understood so

Question: Have you not always understood that James Cathie who was brother in law to our grandmother Anne Erwin first entered the land joining Edward Erwin & which John Ervin afterward purchased & that he gave his right of entry to Anne our grandmother when he left this state

Answer: I did understand it so; nor did I ever understand that Patterson claimed the land and I remember that this place was long know(n) by the name of Cathies Draft

Question: Have you not allways understood that our grandmother & not our grandfather sold John Erwin this land

Answer: I have always understood it so & that Andrew Erwin had no hand in the sale and futher I am persuaded that the price which John Erwin paid for the land was given to Saml. Patterson & not to Andrew Erwin

Question: Has not this land been held in peacable possession by John Erwin your father & his family from the first purchase of it from Anne Erwin till this day

Answer: I never heard of any claim to this land till the present dispute arose for when Saml. Patterson & Andrew had their claim settled by arbitration this land was not ___ by Patterson that I understood

Question: Do you now or did you ever hold or claim any part of this land

Answer: No & further &c.

s/ Benjamin Harrison

Samuel Erwin being of full age and duly sworn deposeth and saith:

Question by the plffs: Have you not always understood that there was an arbitration between Andrew Erwin our grandfather and Samuel Paterson respecting the land now in dispute

Answer: I have, and that the award of the arbitrators was forty pounds, that Erwin complained of its being too much and further I have always understood that the determination of the arbitrators was final.

Question: Do you recollect anything of our grandfather getting cattle of your father to assist him in paying up the award of the abitrators to Patterson

Answer:I have frequently heard that spoken of between your grandfather and my father, and I recollect of their having a settlement about cattle afterwards that I understood were got for this purpose

Question by Plffs: Have you not always understood that James Carthie who was brother in law to our grandmother Anne Erwin first entered the land joining Edward Erwin and which John Erwin afterwards purchased, and that he gave his right of entry to Anne our grandmother when he left the state

Answer: I have, and further I have frequently heard my father and others say that he had purchased this land of Anne and not of Andrew Erwin, neither did I ever hear that Andrew Erwin had any claim to that land, and further I never understood that Patterson has ever laid any claim to said land since the purchase by John Erwin

This deponent further saith that this land has always since, he can recollect, passed under the name of Carthie's in his fathers family to distinguish it from other tracts owned by his father.

Question by Plffs: Did you ever or do you now own any part of this land

Answer: No. and further this deponent saith not

s/ Samuel Erwin

Sworn to before us this 25th June 1806
Watler Dewies (?)
Peachy Harrison