A Land Transfer of 1791
In 1791 western New York was a frontier area filling up with land speculators and settlers. Some settlers bought land in Albany and went into the forest trying to locate their property, and perhaps never found the legal location. Others bought from large tract holders.
In the area of present Oneida County was the Coxe Patent that William Coxe purchased from the State of New York. He had the tract surveyed and then advertised plots, that were called lots, for sale. A deed from Coxe and his wife to four men in Whitestown is an example of a written document for transferring ownership of land. It gave buyers some confidence that they could find their land to settle on or to resell to another settler. This deed, that is now in the New Hartford Historical Society files, came from a descendant of General Oliver Collins, one of the purchasers.
Who were the other parties with Collins in this contract? Were they partners? When royal grants were made of large tracts, the outcry of favoritism led to limiting the size of the tracts, and to the use of "straw men," persons that were included in the grants who later disposed of their interests to the intended grantee. But this was a private transaction; there may have been some advantage in acting jointly.
The deed begins with a date that is written out, as figures are more apt to be misread than words. Next William Coxe's legal residence is given in enough detail to firmly locate him, but the purchasers, the party of the second part, are on home ground and need less identification. "'Parties of the first part" and "parties of the second part" become labels which somewhat curtail the verbosity of the document.
Certain words are written with capital letters, but actually, only two things are of basic importance, the land and the money. Government under the United States Constitution began in 1789, but dollars and cents had not yet totally displaced the pound and shilling in accounts. Notice that money here is New York currency. We tend to forget that states established their own currencies based on the credit of the state. In this instance the Pennsylvania seller had enough faith in the New York pound to accept it in payment. And there is the little rider, "in hand paid," so the deed became a receipt.
Then the contract is nailed down, the title to the land is truly and completely passed from the party of the first part to the party of the second part using seven terms: "grant, bargain, sell, remise, release, alien and confirm" each of them having somewhat different legal usage as their interpretation had evolved.
By contrast the statement following, "to their heirs and assigns for ever," uses the blanket terms heirs, assigns, for ever to cover all future second parties to this contract.
The land had been surveyed and mapped so that location could be established by reference to map and survey, and an estimate figured of the amount of land in the lots However, a more precise area can be indicated by local features on die land, so lot numbers that had been marked on trees are noted. Sooner or later the trees will disappear. But they were better than the classic berry bush that served in one early deed. Now, of course, metal stakes are used in the effort to prevent disputes between neighbors. By accident or intent these, too. may be destroyed, but missing stakes can be replaced rather easily if one or two do remain for a new survey.
One uncertainty does remain, in that the magnetic north moves. To determine the true direction of a boundary line, it is necessary to know where the magnetic pole was in the year the property was surveyed. So the year of the survey is noted in the deed, in words not figures—but this deed which General Collins received is now damaged and cannot be read at this point.
Next there is a complex of terms used in the nature of a guarantee to the purchaser. Finally, the deed is signed by the grantors. Will Coxe and Mary Coxe, and by two witnesses who were in this case prominent personages in the Whitestown and New Hartford settlements.
An element of women's rights is already present in this deed in that Mary, William Coxe's wife, had to sign off whatever legal interest she had in the property. In the 19th Century much adjustment of the laws stemming from the dower right idea took place. Now we are back to the old Dutch colonial legal position in which women essentually had an independent legal status.
The buyers took the precaution in 1793 of registering the deed with the Herkimer County Clerk. A notation is made not only of the day and year, but also of the time of day as an effort to prevent fraud by making the time the deed was recorded as specific as possible.
Not many of us would read a land deed for amusement, but if one is read for a serious purpose it becomes apparent that it is a special form of literature, a product of the evolution of legal form.
At first in England only the judges administered the laws, then gradually some hangers-on, who stood outside the courts and were consulted by those who were called to trials, began to charge fees for their advice. Sharp brains interpreted legal points, and the judges finally consented to allow these lawyers to enter die courts. They were useful to those appearing before the courts for justice, and to the judges.
In college we were told that the law is conservative, and as an example our instructor told us about the early rite of "sod and twig." Parties of a land contract would go to the property, and the seller, before witnesses, would pull up a sod and stick a twig into it, and then hand it over to the buyer as solid proof of the sale. Few buyers and sellers would resort to this practice today, although it was fifty years ago, and may still be in some jurisdictions, an acceptable substitute for a deed. The law changes slowly, but its customs do change. Today "sod and twig" would rank as a stunt, yet its rejection suggests a new question, "What impact will the computer revolution have on our present system of written records?"
© 1995, Robert V. Anderson
The 1791 Deed of William Coxe and his wife Mary
to Samuel Sheppard, Oliver Collins,and Orias and Christopher Meriman
This Indenture, Made the Twenty Ninth Day of October in the year of our Lord one thousand and seven hundred and Ninety One BETWEEN William Coxe of Sunbury in County of Bucks and State of Pennsylvania, Esqr. and Mary his wife of the first part and Samuel Sheppard, Oliver Collins, Orias and Christopher Meriman all of Whitestown in the County of Herkimer second part, WITNESSETH, That the said parties of the first part, for and in consideration of the sum of one hundred and eighty two pounds, eight Shillings New York Currency to them in hand paid, by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged; Have granted, bargained sold, remised, released, aliened and confirmed; AND by these presents, DO grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part and to their heirs and assigns for ever. ALL that tract or lot of land known and distinguished by Lot No. thirty three in the seventh division of Coxe Patent Situate in Whitestown in the County of Herkimer and State of New York aforesaid and is bounded as follow it h Sont[*]. Beginning at a Beach tree marked 32-33-16 standing at the north corner of lot No. Sixteen and runs thence South Eighty one chains and Fifty links to a Hemlock tree marked 33A16=34L17 then West Forty Chains to a Maple tree marked 50A33=51 B 34 thence North Eighty one Chains and Fifty links to a Maple tree marked A9-32-5033 thence East forty Chains to the place of beginning containing three hundred and twenty six acres and also one other lot or tract of land Situate in the Patent aforesaid known and distinguished by Lot No. Sixteen in the seventh division and is bounded as followith Sont[*]. Beginning at the south East Corner of lot No. thirty two at a Beach tree marked 32-33-16 and runs thence along the southwest bounds of the Patent of land granted to Frederick Morris and others south twenty degrees East as the needle of the compass pointed in the year one thousand seven hundred and thirty [damage here] to a Beach tree Marked FM thence West Thirty two Chains to a Hemlock Tree marked 33A16-34B17 thence North Eighty one Chains and Fifty links to the place of Beginning Containing one hundred and thirty acres.
TOGETHER with all and singular the hereditaments and appurtenances hereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, claim or demand whatsoever of the said party of the first part either in law or equity, of, in and to the above bargained premises, with the said hereditaments and appurtenances, TO HAVE AND TO HOLD, the said lots or tracts of land subject to the Quit rents due to the Government and State of New York to the said parties of the second part, their heirs and assigns, to the sole and only proper use, benefit and behoof of the said parties of the second part their heirs and assigns forever. AND the said parties of the first part of themselves, their heirs, executors and administrators. Do covenant, grant, bargain, promise and agree, to and with the said premises, in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns, against ALL and every person or persons lawfully claiming or to claim, the whole or any part of the said above mentioned and described premises, will for ever WARRANT and DEFEND.
In WITNESS thereof, the parties of these presents, have interchangeably set their hands and seals, the day and year first above written,
SEALED and DELIVERED In PRESENCE of
Jedidiah Sanger Will Coxe
Timothy Tuttle Mary Coxe
[* Sont = to wit]