In Kornfeld's docu-biography of Margaret Fuller, (pp. 40-21) while describing Fuller's 1840s journey to the upper midwest, she notes Fuller's disappointment in the fact that both men and women were too trapped in their eastern and traditional preconceptions to adapt to the new circumstances of the frontier. Women were still entrapped in their ideal of delicacy (rather than the strength demanded by the frontier) and men failed to recognize the aesthetic spirituality of the nature that surrounded them. Both were caught in what Fuller labels "inherited prejudices," materialism, and utilitarianism that blinded them to the liberating possibilities the frontier presented. (Summer on the Lakes in 1843)
posted by Lloyd at 3:28 PM

“The condition of the above obligation is such, that, whereas the above bound George A. Thompson hath this day sold unto Spence Hall and James G. Hall the northeast quarter of section ten, the east half of the northwest quarter of section ten, the southwest quarter of section ten, the east half of the southeast quarter of section nine, the west half of the north-west quarter of section fifteen, the north half of west half of southwest quarter of section fifteen, west half of southeast quarter of section ten, the south half of the south half section three, the north half of the east half of the southeast quarter of section ten, the north half of the west half of the northeast quarter of section fifteen, being nine hundred acres, lying in Yalobusha county, State of Mississippi, at the rate of twenty dollars per acre, being the sum of eighteen thousand dollars; for which the said Spence Hall and James G. Hall have given their notes, one for six thousand dollars, payable March 1, 1838, and one for six thousand dollars, due March 1, 1839, and one for six thousand dollars, due March 1, 1840. Now, on the payment of said notes upon a proper presentation of the same, the said George A. Thompson doth bind himself, his heirs, executors and administrators, to make the said Spence Hall and James G. Hall, their heirs or assigns, a good and perfect title in fee simple, under warranty (general) to all and every part of said land; then this obligation to be void, otherwise to remain in full force and virtue.”

The bill then stated that the complainants were strangers in Mississippi, and being desirous of settling in the State, were recommended to the defendant as “an honorable man, with whom they could safely deal, and being informed that he was desirous of selling his lands, were induced to examine them, and made the purchase as aforesaid; that at the time they examined and purchased,” the defendant was keeping a tavern on the property; that the site of the house was immediately on the stage road from Manchester (now Yazoo city) in this State, via of Benton, Lexington, &c. to Nashville in Tennessee; that there was a superior well of water on the place, and that the stages changed horses and the travellers breakfasted there; that while the complainants and defendant were in treaty for the land, the defendant showed to the complainants “what he alledged embraced the tract, and rode round the same, pointing out to your orators what he alledged to be the boundary lines, and represented all the lands embraced in said lines to belong to him, free from incumbrance, and stated” his ability then to make a fee simple title, and willingness to take a deed of trust to secure the purchase money; but the complainants preferred taking merely a bond for title.

*2 That at the time of treaty and purchase, the defendant represented that the land contained three hundred acres, then in cultivation, and that he “also represented that the eastern boundary of said land, by a line running north and south, included three inclosures around the dwelling house” and the out houses; that, induced by these representations, the complainants bought and took possession in February, 1837; that some time in that year the complainants discovered that the lines pointed out by defendant did not embrace the house and inclosure, as represented; but that portion of the inclosure belonged to one Brooks, portion to one Ragsdale, and portion to Carpenter & Irish, excluding about thirty acres of good land, represented to be embraced within the boundary they were buying. That the defendant pointed out an inclosure as being the lines of the tract, and showed a stake at a point, as the corner of the tract he proposed to sell; but that in a survey they made after the sale and the delivery of possession, on the 21st and 23d of July, 1838, “it was discovered that the true line cuts off the east side of the inclosure, and takes the corner of several of the houses, between the true line and the houses, and does not leave near space enough for building;” and that the defendant never intimated that he did not own all the land within the inclosures.

The bill states further, that the defendant, before the sale, represented that there were but sixty acres of untillable land, in which representation they relied; that they paid the defendant $3000 before they discovered the imposition that had been put upon them; that having ascertained that Brooks owned part of the yard inclosed, they were induced to look more closely into the matter, and they found there were three hundred acres in the tract wholly unfit for cultivation; and that Thacker W. Winter held a deed of trust upon six hundred and eighty acres of the most valuable part of the land, of which they made an exhibit to the bill, and which recited an indebtedness on the part of the defendant to Winter of $7077 33/100, due in three equal instalments, in January, 1836, 1837 and 1838; in the deed of trust there was a power of sale on sixty days notice, in case of failure to pay; that the defendant had no color of title to forty acres of the tract; that two inclosures of the tract did not belong to defendant, and that part of another inclosure was in the same iondition; that, ascertaining these facts, they called on Thompson, tendered him his bond, and demanded their note; that the defendant admitted he had at the time of sale no title to forty acres of the tract, but stated that he had since acquired it by purchase, and refused to rescind the contract.

The bill then charged that the title to the south half of the north half of the west half of the northeast quarter of section fifteen, which was land of the best quality, was in one A. Bangsdale; that the defendant had, by exhibiting inferior lands to them, of a poor and broken quality, when examining one King's land in the neighborhood, which had been offered them for sale at $10 per acre, induced them to reject the offer and buy his own land, when in fact the land which they had really been offered at $10 per acre, was fine land, but the defendant had fraudulently led them over broken and hilly land to induce them to buy his own; and after they had bought his, the defendant immediately purchased the other.

*3 The bill charges that the defendant wholly concealed from the complainants the deed of trust in favor of Winter, and that they would not have bought if they had known either the defect in title, in boundary, or in quality of the land; that immediately after they purchased, the land rose in value, and they could have sold it at a greatly increased price, but for the incumbrance and want of title in the defendant; that they have put $1000 worth of improvements on the place.

The bill states further that the defendant had sued them in Yalobusha county upon the note for $6000, then due; and therefore the bill prayed for injunction, which was granted, and that the defendant should refund the $3000, and pay for the improvements, and that the contract of sale might be rescinded, &c.

The answer of the defendant, Thompson, was filed the 7th day of January, A. D. 1839. It admitted the sale of the nine hundred acres, but stated that in arriving at the number of acres, the eighths of land, were all estimated at eighty acres each, by a distinct agreement between the parties; that the complainants came to his house in search of lands for a location; they remained at his house several days looking at lands in the neighborhood, and at length offered to purchase of defendant. He asked them $25 per acre, and they determined to look at his land, and he accordingly exhibited it to them. They were pleased with the land, but thought the price too high, and went off to look farther; after an absence of three days, they returned without having purchased, but with a memorandum of the lands belonging to King, in the neighborhood; that he with them and an agent of King's, rode round King's tract, and that they were pleased with it, but declined purchasing because it was wild land; and that he afterwards agreed to sell his own land at $20 per acre, and the complainants purchased of him. The answer denied that the defendant had undertaken to show all the lines of boundary and corners to the land; he only undertook to show those which he knew; many of the lines were ““open lines,” and the corners unestablished; neither of which did he pretend to point out; the answer denied that he represented to complainants that the land was free from incumbrance, or that his title was perfect in fee simple to it; that the deed of trust to Winter, upon which $630 was then due, was a lien upon it, nor had he perfected some of his other titles; that he held an offset against Winter for about the amount due upon the deed of trust. He admitted that he had offered to give a deed and take a deed of trust upon the land to secure the purchase money; and that he had since the sale urged it upon complainants to pay off the deed of trust to Winter, with the first payment due to defendant. He denies that he represented there were three hundred acres of cleared land in cultivation, but states that, upon their inquiry, he gave it as his opinion that there were two hundred and fifty acres cultivated, which is still his opinion. He denies all the misrepresentations of boundary with reference to the land and inclosures about the house, and states, that he pointed out clearly and distinctly the real boundary; and that the complainants knew well what the line was; that part of the contract, not written, however, was, that complainants should put up another cabin, and in pointing out the location of the proposed house, he cautioned them not to erect it in that part of the lot that did not belong to them, as the owner might be troublesome.

*4 The answer stated, that with reference to the lands of Carpenter & Irish, and the direction of the eastern boundary, he did not state positively its direction; it was an open line, and he could not know its bearings or corners, and he so informed them; that with reference to the land claimed by Barksdale, there was a mistake in the title bond of twenty acres; that much having been previously conveyed by him to Barksdale, and the complainants were so informed at the time; that one of the complainants drew the title bond, while he himself was unwell, and the draftsman of the bond made a still greater mistake than the insertion of twenty acres not sold, in the omission to include one hundred and sixty that were actually sold; and that he distinctly pointed out what portion in his inclosure was the property of Barksdale. The defendant again denied all misrepresentation about the inclosures around the house, and in his answer, states minutely the examinations made by the complainants and the information given by him; the defendant does not admit the correctness of the ex parte survey made by the complainants, and he denies all misrepresentation about the character or amount of the land, and states that the complainants examined diligently and carefully for themselves, and relied entirely upon their own judgment. That they examined the land again and again both before and after the sale, and expressed themselves perfectly well pleased with the property, and never once alluded to the misrepresentations of fraud alledged to have been practiced, until after the great pressure in money matters come upon the country, and the land fell in value. The answer admits the payment of $3000; denies that he represented only sixty acres to be untillable; denies that three hundred acres are worthless; admits that he refused to rescind the contract, but denies that at that, or any other time, he admitted he had not purchased the forty acres; he stated and admitted that he had no title, but had paid for them and has since received the title. He denies all fraud in showing the complainants the land of King; says he had never seen the land before and has never seen it since, and has never purchased one foot of it. The answer denies all knowledge of any improvements that the complainants aver they have put on the land, and denies that the complainant ever lost a sale of the land in consequence of the existence of the deed of trust, and states that he had often urged them out of the moneys due to discharge and satisfy it. The answer admits the institution of the suit at law, and judgment on the first note, and prays to be dismissed, &c.

Upon this state of the pleadings the chancellor dissolved the injunction on the 21st of January, 1839.

The complainants afterwards wrote a supplemental bill, and obtained another injunction from the circuit judge, without filing their supplemental bill in court, and the chancellor, on the 8th of June, 1839, dissolved the second injunction. The supplemental bill was however afterwards filed, and commissions were opened to take depositions.

*5 On the 20th of June, A D. 1839, a motion was made to set aside the order dissolving the injunction, but was overruled.

On the 2d of December, 1839, the supplemental bill referred to was filed in the court below, and stated in substance, as follows: it filed a copy of the original bill and made it part of the amended and supplemental bill, as exhibit No. 1. It charged that the defendant in his answer to the original bill had denied all the material allegations thereof except as to the existence of the deed of trust, and made his answer exhibit No. 2, to the supplemental Bill:

It further stated that one of the complainants lived in Tennessee, the other in Yalobusha county in this State, at some distance from Jackson, where the court of chancery was holden. That the injunction had been issued by the circuit clerk, at Coffeeville, with whom the bill had been filed; and that the solicitors of the complainants had given the defendant a copy of the original bill, on condition that he would supply them with a copy of his answer; which he designedly did not do, in order that he might, by withholding his answer from their inspection, obtain a dissolution of the injunction before they could obtain proofs in support of their bill; that he filed his answer during the January term, 1839, when they for the first time had an opportunity of inspecting it; that the defendant immediately on filing his answer entered a motion to dissolve the injunction, which, by the rules of the chancery court, was heard five days after it was made; and the injunction was accordingly dissolved; they not having had time to obtain proofs in behalf of their bill: and not having time, in consequence of the distances at which witnesses lived from Jackson, and the rules of the court, to get the depositions during the then session of the court.

The supplemental Bill then averred, that so far from the amount of the deed of trust of the land in controversy, in favor of Winter, being paid so as to release the land, the trustee named in the deed had advertised the land for sale to satisfy the debt named in the deed of trust, and at the same time the defendant was striving to coerce from them, by sale of their negroes, the amount of complainant's purchase money reduced to judgment: that they have understood the defendant was greatly indebted, and they were apprehensive, on just grounds, that if driven to a suit against him, to recover back any money they might now be compelled to pay, a recovery against him would be unavailing: that the defendant's bond for title would be no adequate remedy:

That part of the land in controversy, was purchased of the Federal Government by one Ellis, whose wife was still living and her right of dower not relinquished; portion by James Blackburn, whose wife was still living and her right of dower not relinquished; portion by Thacker W. Winter, whose wife was still living and her right of dower not relinquished; that the portions of the land in which dower was unrelinquished embraced nearly the entire tract; of which facts they were unacquainted when they filed their original bill, and which Thompson fraudulently concealed.

*6 The supplemental Bill stated further, that complainants did not believe Thompson had paid the debt to Winter, as averred in his answer, because Winter had, before the filing of the original bill, transferred it to one Warren, of the State of Tennessee, whom Thompson had not seen. The exhibit No. 3, to the supplement, was a copy of the advertisement for sale of the land in controversy, to pay the debt to Winter. Exhibit No. 4, was a certificate of the register of the land office, at Chocchuma, showing the original purchasers of the land.

The supplement then referred to the great pecuniary embarrassments of the country, the difficulty of raising money except by loans upon real estate, which the imperfect title they had would prevent their effecting; that the north half of the west half of the northeast quarter of section fifteen, was government land; that the wives of Fisk, Jamieson, Flack, M'Daniel, Hudson and Winter, were each entitled to dower in the land; that Thompson withheld his title and would not disclose it, leaving them to grope in the dark in ascertaining what title he really had; and concluded by praying an injunction.

On the 28th of December, 1839, J. S. Ayres, one of the counsel for complainants, filed an affidavit, setting forth the reasons why the supplemental bill had not been filed according to the rules of court, in the proper time, and after argument, the court, on the 28th of that month, ordered the injunction to be reinstated upon complainants paying the costs of the supplemental bill and of the motion.

On the 9th of June, 1840, the defendant, Thompson, filed his answer to the supplemental bill. He denied his alledged promise to furnish complainants' counsel with a copy of his answer, and stated that his answer was filed on the first day of the court, and was not withheld; charged that the complainants issued no subpoena upon their original bill, for the purpose of gaining the delay of a term of the court in the payment of their debt, which he defeated by voluntarily filing his answer. That the defendants were not “surprised” at his motion to dissolve, for they had affidavits in readiness to read upon the motion.

He admitted that the lands had been advertised for sale for the debt due Winter, being about six hundred dollars, but that he had enjoined the sale, on the ground of an offset in his favor of about five hundred and ninety dollars, and that his injunction had been sustained; that the complainants had not been in any wise molested in their possession or enjoyment of the estate.

He denied the alledged attempt to sell the complainants slaves, because the forthcoming bond given by complainants was not forfeited when they obtained their second injunction. He admits his indebtedness, but states that it is owing entirely to the bad faith of complainants, whose debt to him, if paid, would free him from all embarrassment.

The defendant then set out the following train of title, with reference to dower interests in the land. Part of the land was purchased of Thomas Y. Ellis, deceased, his wife's relinquishment of dower, filed as exhibit 1, to the answer. A portion was entered by James Blackburn, also now deceased, his wife's relinquishment appears in exhibit 2. A portion was entered by Thacker W. Winter, whose wife relinquished her dower, exhibit 3.

*7 He admitted the transfer of the Winter debt secured by the deed of trust to Warren, but stated that the transfer could not affect his offsets, and that he had over and again offered to credit the complainants with the full amount of the balance due on the Winter debt, if they would pay it, which they uniformly refused to do.

He admits the monetary embarrassments of the country, but states that he has again and again offered to make the complainants a title in fee simple, if they would only secure him the purchase money.

He denied positively that the north half of the northeast quarter of section fifteen, was government land, but exhibited the certificate of entry in favor of McDonald, and transfer to himself. He admitted Jamieson's entry of eighty acres, but showed his transfer to Winter, before Jamieson was married. Flack never owned any of the land, and McDonald's wife relinquished her dower to one of the defendant's vendors, as was exhibited and shown. Barksdale's wife made a quitclaim to the defendant, which was also filed. Hudson never owned or had any interest in the land, and of course his wife could have no right of dower.

The defendant then detailed in part his title to the court, by exhibits, being deeds from John Kirkpatrick, George Barringer and Isaac Thompson, and various other exhibits, in number, twenty-seven, showing the chain of title in Thacker W. Winter, from whom he derived the principal portions of the land in controversy, and states his full ability to make a perfect and unincumbered title.

In the month of June, 1840, the complainants filed an amended and supplemental bill, which stated in substance, that the defendant claimed to hold title to part of the land in controversy, by virtue of a deed from Thacker W. Winter, to him; and that that deed was neither acknowledged or recorded so as to vest title in the defendant; that Winter was insolvent, and judgments to a large amount now outstanding against him, and which constituted a lien on the lands; that the deed from Winter was made in the year 1834, but was not recorded until the 22d day of June, 1837, after the purchase made by the complainants; that Winter pretended to derive title to part of the land he sold defendant, from one Andrew J. McDonald; that they do not believe McDonald ever made a deed to Winter, and that judgments to a large amount exist unsatisfied against McDonald; that Winter pretends to derive title to part of the land, from Blackburn, who they believe never made a deed to Winter, or, if made, that it was never recorded, and that the land was liable to be sold to pay judgments against Blackburn; that Winter pretends to derive title from Robert Jamieson, to part of the land, but they do not believe Jamieson ever made him a deed; and that Winter pretends to derive title to part of the land, from Monroe G. Ellis, who they believe never made a deed; and that Ellis or his heirs are now the owners of that part of the land; that to the same part of the land, the title to which is in Ellis, Winter pretends to have derived a title from the said James Blackburn, but that Blackburn's deed to Winter was not properly acknowledged or recorded, and that he was insolvent, and judgments against him, binding the land.

*8 That the defendant pretends to derive title to part of the land from John Kirkpatrick, by deed filed for record on the 12th day of May, 1840; that Kirkpatrick was then utterly insolvent, and calls upon the defendant to disclose whether judgments were not then in existence against Kirkpatrick.

That the defendant had not exhibited his title papers to that part of the land he derived from Barksdale. The amended, &c. bill, then prayed for subpoena, and repeated the allegations contained in it, again, by way of interrogatory.

In the same month, June, 1840, the defendant filed his answer to this amendment and supplement.

He admitted the sale from Winter, and submitted to the court the sufficiency of the acknowledgment and record; denied that any judgment existed against Winter, prior to the sale to complainants, and stated that they knew his title came through Winter before they bought. He admitted the derivation of the title to part of the land from McDonald, and submitted to the court the sufficiency of the transfer, which was made an exhibit to the former answer; and states that at the time of McDonald's sale, he was not insolvent, and no judgments existed against him, and that he believes none now exist.

He admitted that Winter derived title to part of the land, as exhibited in his former answer, by the transfer of the certificate of entry of the land, from Blackburn; that he believes Blackburn never made a deed to this portion of the land, to Winter; that he admits Blackburn is now insolvent, but denies that he was so at the time of the transfer, and that, therefore, the land is not subject to the debts and liabilities of Blackburn; that Blackburn lived within half a mile of the complainant, and that they were very intimate with him, and knew, ever since they filed their first supplemental bill, the defendant derived title to part of the land through him, and yet they never made this objection till now, when Blackburn and his wife have both emigrated to Texas. He admitted his derivation of title from Jamieson, and referred to exhibit No. 6, to his former answer, for the mode by which the title passed, and that the same was the state of fact with reference to the land purchased of Ellis; the title being passed by a transfer merely of the certificate of the receiver of the land office of the entry of the land, by the holder of the certificate, which he contended was a good title.

He admitted Blackburn's sale by deed of another part of the land to Winter, and referred to the title papers exhibited with his former answer, and contended for their sufficiency, and denied that if any defect existed in the mode of the transfer or the official certificate of it, it could affect his title or subject the land to the debts of his vendor. He admits his derivation of title to part of the land from John Kirkpatrick, who entered portion and bought portion from one George Barringer, who made a deed to it to Kirkpatrick, as Kirkpatrick avers; that Kirkpatrick is entirely solvent; whether or no Barringer has made him a deed he does not of his own knowledge know; that it was only the east half of the south half of the southwest quarter of section three that Barringer ever owned and Kirkpatrick sold.

*9 He admitted the purchase of part of the land of Barksdale, and referred to his other answers for an exhibit of its character and sufficiency. He admitted Winter's insolvency, but denied that it all affected the sale by Winter to defendant, as the former occurred long since the latter, and referred to his answer and its exhibits, to the original and supplemental bill for a detailed statement of his title.

He stated that immediately upon his purchase from Winter, he took possession of the land sold, and resided on it up to the time he sold to the complainants in November, 1836, and that the complainants took possession in February, 1837, and have retained it undisturbed ever since, and that Winter had been prior to his sale to the defendant in quiet possession of the same land ever since his purchases from the various persons in the various modes set forth, and he denied therefore that any informality in any of the records or acknowledgments could affect his title.

The following is the certificate of acknowedgment appended to the deed from Thacker W. Winter to the defendant, George A. Thompson:

“Personally appeared before me, John Boon, an acting justice of the peace for Yalobusha county, T. W. Winter, and acknowledged the foregoing instrument to be his free act and deed, December 6, 1834.

“JOHN BOON, Justice Peace. (Seal.)”

The acknowledgment to the deed from James Blackburn to Thacker W. Winter, was made by one of the subscribing witnesses, who witnessed the deed in the following words:

“Signed, sealed, and delivered in presence of

“JNO. H. M'KINNIE.

“THOS. B. IVES.

“REUBEN HEARNE.”

The acknowledgment was as follows:

“THE STATE OF MISSISSIPPI, Yalobusha County.

“Personally appeared before me, D. W. Rayburn, clerk of the probate court for said county, the within named Thomas B. Ives, one of the subscribing witnesses to the foregoing deed, and made oath that he saw the within named James Blackburn sign, seal, and deliver the same to the within Thacker W. Winter, and that he saw the John H. M'Kinnie and Reuben Hearne, the other two subscribing witnesses, sign the same in presence of each other, in the day and year therein specified.

“THOS. B. IVES.

Sworn to and subscribed before me this 26th day of January, 1835.

“D. W. RAYBURN.”

Upon the hearing of the case, on the motion to dissolve before the chancellor, the following depositions and proof were read and exhibited:

The deposition of A. Barksdale proved that he purchased sixty acres of land of Geo. A. Thompson, the defendant-the south and west half of northeast quarter section fifteen-the line was established by the county surveyor, and the fence was within three or four feet of the line, and was there before Thompson sold the land to complainants; that he told one of the complainants, in 1837, that the fence was about the line. Spence Hall, one of the complainants, told witness he wished him to let the fence on the road remain; he stated to witness that Thompson told him that the land within that fence belonged to witness, and that Thompson and witness, had talked of exchanging the land within the fence, for land lying north of that bought from Thompson; complainant further stated that he had not obtained a title, but as soon as he did, he would make the exchange. Witness is somewhat acquainted with the land sold by defendant to complainants. As far as he knows, it is a fair tract for the county-lands of no better quality, in the neighborhood, sold at $20 per acre, part cash; witness' lands adjoining, he would not have sold for that price, unless part was paid in cash. The conversation between Hall and witness, was some time in 1837. The lands north of the Troy road, he does not suppose to be as good as those on the south; complainant stated to witness that Thompson never told him that the fence was on witness' land; that it was about two hundred and fifty yards from it, and cut off about one acre of witness' land; showed Hall the stakes on the line between witness' land and that purchased by complainants from Thompson; the stakes were set up in the fall before; witness has three hundred and forty acres of land, which he considers more than an average, as compared with the land in the neighborhood; did not know the lines of the land sold by Thompson to complainant, north of the Troy road.

*10 William Murphy, a witness for complainants, stated that he acted as their overseer for the year 1837; that the cleared lands on the tract, purchased by complainants from defendant, were in eight different parcels, and that there was not more than one hundred and forty or one hundred and fifty acres in the whole; there was about fifty or sixty acres besides of deadened land, which had never been grubbed, and was so grown up in vines and briars that it was more difficult to bring into cultivation than if it had never been deadened, and just taken out of the woods. There was a field south of the Grenada road, containing about six acres, and south of that there was a space of about six acres more, which was in the condition above mentioned. Witness cleared about one hundred and ten acres of land, which could not have been done for less than eight hundred dollars. The value of additional labor bestowed by witness, in clearing up hedge-rows and putting the fences in a good condition, was worth one hundred dollars. The southern line runs through the yard, very near the smoke house, and very materially injures the building site, and the value of the improvements, as it throws the settlement nearly on the side of the hill.

Jeptha Folkes states that he was present at a conversation between one of the complainants and defendant, early in the year 1838. In that conversation Hall charged Thompson with having practiced a fraud upon him and his brother, in the sale of a tract of land, and offered to give him back the land, and tendered to him the title bond, and demanded the notes he had given. Thompson denied the fraud, and refused to receive the land or deliver up the notes, and inquired in what he had been guilty of fraud? Hall charged him with having concealed from them a deed of trust which encumbered the property, and which he said lessened the land's value, and prevented him from selling it to advantage. Thompson did not deny the deed of trust, but said they had nothing to do with it; that he intended to discharge the debt, and free the land from that incumbrance, and that he was then willing to pay off the trust and make them a title. Hall also charged him with having fraudulently shown them an inclosed field as belonging to the tract of land, which did not belong to it; and that the piece of land now found to be claimed and owned by another, was a part of that sold, although it was within the inclosure, and left them to believe that the whole field belonged to the tract he had sold. Thompson replied to this, that he had told them the field contained three hundred acres, and he still said there was three hundred acres within the inclosure. He did not deny that he had shown the whole field, without informing them that a part was claimed by another individual. Hall further stated, that from information he had received from a man by the name of Flack, that the fence between Carpenter & Irish and Thompson, was on the land of the former. Thompson said this was false-that a surveyor would settle the question-and that instead of its being on the land of Carpenter & Irish, he had twenty, or thirty, or forty acres between this fence and the line. Hall further charged him with an intent to deceive him, by proposing to execute a deed to the land while it was incumbered, and he could not convey. Thompson replied, that although he then had no title for some forty acres of the land, yet he said he could procure it when he saw the owner; that subsequent to the sale he had made to them, he had bought it, and was then able to make a deed. Hall replied, that he had wilfully suppressed and concealed the fact, that the line passed through the yard, cutting off a part of the inclosure, and some of the buildings. To which Thompson replied, that he had showed them a stake north of the road, near the stables, which was the corner, and that he told them the line run to some certain point of the compass, which was south, and they ought to have known it would cut off a part of the yard.

*11 John A. Arnold states that he has read the deposition of Dr. Folkes, and that it is correct, except that he does not recollect that anything was said about any other field, inclosing land not belonging to the tract, except where the land of Carpenter & Irish was encroached upon, and where the line passed through the yard. Hall charged Thompson with having shown him land in the field that did not belong to him, and Thompson did not deny it, except as stated in Folke's deposition.

William J. Watson states that he was in the employment of Thompson as overseer, in 1836, at the time the land in controversy was sold to complainants; that previous to the sale, and whilst the parties were in treaty for it, he heard Thompson direct James Peele to show the lands of Alexander Barksdale as a part of the tract he was about selling, as that was very fine land, and much better than that adjoining, which he was about to sell; and that said Peele was directed to conduct complainants so as to keep them from seeing the west and poorer land contained in the tract; that he heard Thompson ask Peele if he had showed the land as he directed, to which Peele replied in the affirmative, and Thompson said “good,” and expressed his satisfaction at the manner in which his directions had been complied with; that he heard Thompson say soon after he had made the sale, that he had sold complainants, as a part of his land, forty acres which belonged to Thacker W. Winter, which he could purchase in a few days for $5 per acre, for which he was to get $20. Witness asked Thompson if he had shown the land to complainants? and upon his replying he had, he asked him if he had shown the west land, between the hill and creek? to which he replied he had not-he was very clear of it-it was no part of his businsss; that he had heard defendant state, after he had made said sale, that he had caught a sucker, and that he had got clear of land that was of no account, or at least some of it; that whilst they were in treaty for the land, he heard complainants ask defendant how much land there was inside of the fence? to which he replied that he did not know; but that all the land within the fence was his. This had reference particularly to the big field, lying between the Troy and Grenada roads. That, in the spring of 1836, when witness was about to repair the fence around the big field, he was informed by Mr. Barksdale, that he had a small strip of land in the fence, and he did not wish the timber to be cut off; and deponent, in order to ascertain where the line run, staked it for some distance, but did not cross the road to the south, and has no recollection of ever staking any other line of said tract at any time; that he has no recollection of any other stakes running across the road into the little Blackburn field south of the road, at the time of the sale; that he does not know how far the land of Barksdale joined the lands sold to complainants-it might be one hundred yards or more; nor does he recollect whether the stakes he stuck were standing at the time or not.

*12 James Peele, a witness for defendant, states that he lived with defendant about eighteen months, and was present and heard part of the conversation between complainants and defendant about the sale. Spent a whole day with complainants and defendant, in riding over the land, which King, as agent for Carpenter, wanted to sell to complainants. As they returned home, they passed the northeast corner of the land sold by defendant to complainants. The corner shown was about one quarter of a mile from the northeast of section ten. Witness went with complainants at the request of defendant, who was ill, to show them the land, and point out the corners. He did so, and with them made a full and thorough examination of the whole land; following the lines at times, and at times not, going over the whole tract, which he particularly describes and states in his testimony. The complainants were about two weeks at the defendant's house before the trade was concluded. Witness told complainants not more than sixty acres of the tract was untillable. Does not recollect that defendant said anything about the quality of cleared land, but witness stated to complainants that there was about two hundred and fifty acres. Does not know that defendant, at any time before the trade was closed, pointed out to complainants only poor and broken lands, unfit for cultivation, or any thing being said about it. When the parties went to examine the lands, they passed over some as poor as any in the tract sold to complainants, except the mountains. Witness was asked by complainants where the line would cross the mountain? Replied it would pass about the middle of it. The crib and stables were on the southeast corner of section three, the crib about twenty, and the stables about thirty yards from the corner. The family residence was on the northeast corner of section ten, about sixty yards from the corner. The section line was plainly marked; it passed through the edge of the yard, cutting off about ten feet at the greatest extremity, and struck the corner of the smoke house, which was about one foot over the line. There was a small chicken coop upon Flack's land, and one or two marked trees in the yard. Does not know whether defendant showed the complainants the line which passes through the yard. Witness showed them the line south of the yard some twenty or thirty yards from the yard, for nearly quarter of a mile; and had previously shown the line north of the yard about a quarter of a mile, being on section three. Defendant did not represent himself as being acquainted with Carpenter & Irish's lands, nor did he act as guide. Did not hear complainants say anything against those lands, but said they thought it better to buy the defendant's tract, as it was improved; they did not like to go into the woods; defendant and complainants went two or three times to examine the land; they were absent two or three days at a time to examine lands; but does not know that they examined any but Flack's and defendant's.

*13 Cross-examined by complainants. States that he resided about seven months with defendant, after the sale of the land to complainants; has always been intimate with defendant since their acquaintance, which commenced in 1834; the subject of the sale has not been a subject of conversation between himself and defendant but once, that he remembers; upon being asked, when called upon to give an affidavit before J. Boon, Esq., to say and testify upon oath, if he did not say he recollected but little about the matter, as he did not expect to be called upon about the matter, and did not charge his memory with it, or the circumstances that transpired relative thereto? he answered that he did so state, but since he has been called upon to testify, he has endeavored to bring to mind what did take place; when he made that statement, he did not know much about the contract between complainants and defendant, and alluded to the price and payments, and not anything relative to the lines or the land; does not remember any particular conversation which he had with complainants at the time of showing the lines; they talked generally about the lands.

The deposition of James Peele was afterwards re-taken, for the purpose of rebutting the testimony of William J. Watson, on which occasion he testified as follows:

That he showed the lands to complainants which were sold to him by defendant; that he was not requested by defendant to show the lands of Barksdale, as a part of defendant's land; that the land of Barksdale, where it joins the lands purchased by complainants, is no better, but the wet part is inferior; defendant did not, at any time during the treaty for the land, request witness to show the tract in such a manner as to keep complainants from seeing the poor and wet lands contained in that he was about selling; nor was he at any time requested to show them in a deceptive manner; nor did defendant at any time ask witness if he had shown Barksdale's land as a part of the tract he was about selling to complainant; nor did defendant, at any time, ask him if he had avoided showing the wet and poor land contained in his tract. The land of Barksdale joins that of complainant's about one and a half miles; thinks that it was in the spring, or early in the summer of 1836, that defendant purchased the forty acre tract from T. W. Winter. In showing the lands to complainants, witness showed to them a part of a big field, between the Troy and Grenada roads, which he told them was not the defendant's; does not remember that either of the complainants made any reply to his remark. Did state, upon oath, before J. Boon, Esq., that he recollected but little about the conversation and contract between the parties. Was acquainted with Wm. J. Watson during the year 1836 and a part of 1837, but knows but very little of his character for truth and veracity.

The deposition of Isaac Thompson states, that he was acquainted with William J. Watson, whilst he was overseeing for defendant. Heard him say, that the land sold by defendant to complainants was the best in Mississippi, and that defendant missed it by selling it. Had a conversation with Watson, sometime in September, 1837, about the sale of the land. Watson said the land was fairly shown by Peele to complainants, and that it was a fair trade. Understood Watson to say, that he was present during a part of the time. Watson was hired to defendant, but did not stay all the time he was employed to stay with him. He was dissatisfied at leaving him, and witness heard him say, with an oath, on the 1st of November, 1837, that he would injure the defendant as long as he lived, or the balance of his days, in any way he could-he would have revenge. Witness is about seventy-four years of age, father of defendant, lives on the same plantation with him, about one quarter of a mile apart. Is not dependent on defendant for a support; attends to his business occasionally. Did not like Watson nor Watson him. In relation to the language used by Watson, in speaking of having revenge, he said defendant was a rascal, and he would injure him every way he could.

*14 The deposition of James Wade, Esq. states, that he has no reason to offer why he should not believe William J. Watson, on oath, and “when not under the influence of the intoxicating principle.” Thinks him rather too much “of a revenging character,” and malicious disposition towards those he is dissatisfied with.

Benjamin Land, a witness for defendant, states that defendant showed to complainants the line at the corner by the stables. The defendant, when he showed it to complainants, said, pointing to the land owned by Flack, that if they purchased his, they had better buy Flack's or remove the buildings, as he was a troublesome fellow. Defendant remarked, that this was a good tract of land. Heard Peele say to complainants, that Barksdale would take some of the land off the little field, on the left hand side of the road. Did not hear Peele say anything about the land on the right hand side of the road. There was a good deal of conversation, as they rode along, and when at the south end of the little field, one of the complainants remarked, that if the land continued as good as it was, where they then were, they did not wish to examine any farther. Peele replied, that it was pretty good. One of the complainants asked Peele how far the line between Carpenter & Irish and defendant, would run west of the fence. He replied, a hundred and fifty or two hundred yards; that it was an open line. Defendant had previously shown to witness, part of the lines on his land, and offered to sell him the same for $25,000; thought the price was high-he represented the land as being good, and witness thought it was good, so far as he had seen. Defendant observed to witness, that there were about fifty or sixty acres unfit for cultivation; his overseer also represented to witness the land as good; witness told complainants he thought it was good land, and that they could not do better than to purchase it at the price asked, provided cotton remained at the price it then was. After complainants had purchased, he told them he thought they had got a good bargain. He had travelled the Grenada and Troy road, and could see a good part of the land. Does not recollect that he heard complainants make any complaint about the land, or the price thereof; immediately after the purchase they took possession. Flack offered to sell his land to witness for $15 per acre, half cash. He afterwards sold to Brook for $20 per acre. It was superior wild land.

Witness had heard James G. Hall, one of the complainants, say that there was no dispute about the quantity of the land sold to them, according to King's survey; that as to the land in Barksdale's field, if it overruns twenty acres, according to that survey, it was a mistake. Neither defendant nor Peele showed the complainants the land in Barksdale's field, as a part of the tract. If King's survey overrun nine hundred acres, it was a mistake. On cross examination, he states that he does not recollect that either of complainants expressed any satisfaction with the purchase soon after it was made. Complainants were seven or eight days in the country before they made the purchase. After his return to Mississippi, in March succeeding the purchase, J. G. Hall observed to witness that he would like to sell the land, but assigned no reason for it. In a subsequent deposition, he states that he was at defendant's house in the fall of 1836, about the time the sale was made. Heard William J. Watson say it was a very fine tract of land; witness had some notion of purchasing the land at the time; he also stated that Thompson was a gentleman, and if witness purchased the land he would deal fairly by him. Heard Thompson say that he thought Watson was a clever fellow when sober, but that he would get drunk, and then he had no confidence in him. From his acquaintance with Watson, he could say nothing for or against his character for truth and veracity; did not hear Peele say that any part of the land in the big field did not belong to defendant, though he might have so stated in viewing the land. Witness supposed that all the land, on the right of the line, belonged to defendant; heard defendant say, that he would agree that Watson's deposition in this case, might be read on the trial of a cause in the circuit court, as evidence, for the purpose of getting a trial.

*15 John G. Ramsey states, that in a conversation which he had with Spence Hall in Tennessee, he stated that they had pretty mountains right before the door, which would be a pretty place for a wind-mill or a summer-house. Did not say it was on the land he purchased of defendants. In another conversation which he heard between J. G. Hall and defendant, Hall charged him with selling complainants' lands which did not belong to him at that time, but which he had contracted for, and that he would be able to make him a deed by the time the bond called for it. Hall then accused him of representing a corner or line in the Troy road, to be about a hundred yards beyond the fence, and that instead of the line being beyond the fence, it took off a part of the field. Defendant replied that it was an open line -that he did not know where the line was, but did not believe the line would run in the field. Complainant then stated that he had made a wrong statement about the amount of cleared or cultivated land-that defendant had said there were two hunddred and fifty acres of cleared land. Defendant said it had never been measured. Complainant said, defendant had not pointed the line running through the yard. Defendant told him it was a marked line. Witness has given a detailed statement of all the conversation he recollects to have taken place at his house in the deposition taken in behalf of the complainant, which is as follows: In that conversation, Hall charged defendant with being guilty of a fraud in concealing a deed of trust which was upon the property; and that in his opinion, it greatly lessened the value of the land, inasmuch as it placed it out of the power of complainants to make an advantageous disposition of it. To this, defendant replied, that the Halls had nothing to do with the deed of trust, for he intended to discharge the debts and free it from incumbrances, but “did not deny the charge of concealment, and admitted the suppression.” Hall further charged defendant with having shown them an inclosed field as belonging to the farm, when in fact, it included part of the land claimed by Barksdale, and left them under the impression that the whole field belonged to the premises; to which he replied, that he told them the field contained three hundred acres within the inclosure, and he still said so; but he did not deny that he showed the whole field, without informing them that any part was owned or claimed by others. Hall further charged him, that he stated he owned some thirty or forty acres beyond the fence, when he was informed that the fence was on the land of Carpenter & Irish. To this Thompson replied that the charge was false, and that Flack, who had told him, was his enemy, and that a survey would settle the question-that so far from being on the lands of Carpenter & Irish, there were twenty or thirty acres of land between the fence and their line. Hall further charged him with offering to execute a deed, when he had no power to convey. Defendant replied that he did offer to make them a deed to the land; and stated further, that at the time of the contract, he had no title to about forty acres of the land, but that he could purchase it when he saw the owner - that subsequent to the sale he had bought it, and was then able to make a deed. Hall further charged him with not informing them that the line passed through the yard, cutting off a part of the yard inclosure. To this defendant replied, that he had pointed to them the corner north of the road, near the stable-that he told them the line run south, and that they ought to have known it would cut off part of the enclosure; but he did not deny that he had failed to inform them that a part of the yard was cut off from the premises, by which the residue is materially impaired in value. Hall tendered him back his title bonds and demanded his notes, which defendant refused.

*16 Benjamin Land, on another examination, stated that he told the complainants that defendant had a tract of land to sell, and that he would not deceive them-that he believes this induced them to see defendant and make the purchase-that he, the witness, had heard the defendant say the land was a tip-top piece of land, and that there was not more than forty or fifty acres of waste land on the tract-that defendant offered to sell the land to witness, and stated it was a tip-top piece of land and free of incumbrance, and that the entire inclosure was his -was with Halls and Peele when they went to look at the land -that Peele, during the time he was in company, did not disclose to plaintiffs that the land was incumbered, or any part of the inclosure belonged to any one else-the lines as surveyed, and as represented by Peele, makes a difference of fifty acres owned by Irish & Carpenter, and seven or eight owned by Barksdale-that this difference makes a material alteration in the value of the property, from the odd shape it throws it into, and from the fact that twenty or thirty acres of the best land in the field is included in Carpenter's & Irish's claim, and that outside of the field, some twenty acres is taken off, and cuts the balance off from the road in three places. Defendant requested witness to recommend any persons who wished to buy land in the country, to come and see him. From the representations of the defendant, witness did not suppose that the line from the stake north of the road, near the corner of the fence, running south, would cut off any of the yard or houses, but would run with or near the fence.

James Blackburn states, that of the land sold by defendant to complainants, and which he purchased from Winter, he owned one hundred and twenty acres, which he sold to Winter without relinquishment of dower. Howell Hudson owned one hundred and sixty acres, liable to dower. Hudson's wife is still living. A. G. McDaniel owned twenty acres, sold by him to Winter, liable to dower-his wife still living. Flack owned forty acres, sold by him to defendant. Winter owned about six hundred acres; his wife is still living-knows the north quarter, east half, southeast quarter of section ten, R. five east town. twenty-three; and thinks five or six dollars per acre would be the full value of it, at the time Thompson sold it.

Robert Brooks states the same as to the value of the land above described- does not think it adds to the value of the land purchased by Hall from defendant, by its connection witn it -thinks there is at least three hundred acres unfit for cultivation on the tract sold by defendant to complainants- does not know how much the value of the tract is impaired by cutting off the part claimed by Carpenter & Irish, but states if it was his, he would not have the land cut off for fifty dollars per acre.

Gideon Marchant states that he carried the chain in the survey made by John A. King. Carpenter & Irish's line runs through the big field, and takes off between twenty-five and thirty acres of the most valuable part of the land- leaves the field in a bad shape, and materially injures the value of the land; if the land was witnesses, would not have it taken off for one hundred dollars per acre. Their line also takes off about one acre and forty or fifty pannels of fence, from the forty acre field, north of the Troy road; their west line also takes off a small strip of land, and the whole string of fences on the back line of what is commonly called the ten acre field. There is one third of the tract of land unfit for cultivation, including the hills and wet land. The line running south from the corner stake, runs through the yard and materially injures the building site. There is also seven or eight acres of the Barksdale land which lies within the fields, and when taken out, on account of the awkward shape which it leaves the land in, it diminishes its value seventy dollars per acre. The improvements put upon it, fencing and clearing, is worth two hundred and eighty dollars.

*17 John A. King states, that as agent for Carpenter & Irish, he offered to sell a tract to complainants, for ten dollars per acre. There was about one thousand acres; he agreed to sell it at one, two and three years credit. Represented to them that the land was good, at least a large proportion of it. Having to be absent, he wrote a title bond and notes, and left them with Thomas B. Ives, and requested James Nations and James Hack to show them the land. He afterwards sold the same land to Thomas B. Ives and defendant, without conferring with the defendant, and took their joint notes for the payment, which he had heard Thompson admit he signed. Witness made a survey of the land sold by Thompson to complainants. The line running through the yard and cutting a portion of it off, materially injures the situation for building. The addition of the six or seven acres belonging to Barksdale, would materially, if the road were fixed, enhance the value of the tract purchased by complainants. The quality of the land claimed by Carpenter and Irish, west south of the fence, for a short distance, is very good.

James Nations states, that at the request of John A. King, he went with complainants and defendant, to show complainants a tract of land belonging to Carpenter & Irish; after leaving witness's house, some distance, defendant rode up and asked witness if there was not a good deal of wet land on the tract of Carpenter & Irish-if there was, he wished witness to show it to as much disadvantage as he could, as he wished to sell them his land, and if they did not buy the land they were viewing, he could sell them his. Witness told him there was wet land and knobs. Witness showed complainants the outlines of the land all but one hundred and sixty acres-showed no part of the lines on that. By showing these outlines they did not get a view of the best lands; the lines were about two and a half miles in length, crossed the creek twice, and then they saw some good lands; but the lines were mostly on the points of hills and knobs. He left complainants after showing them the outlines of the tract, except the one hundred and sixty acres. Upon leaving them, he told complainants he wished them to come back the next day as he wanted to show them the balance of the land, as there was some of the best they had not seen. Thomas S. Hall remarked, that he did not know that his time would admit, and then defendant remarked they had sometime yet, and that he would show them what he could of the land. He heard the defendant say, on that, i. e. the day the deposition was taken, that he did not know anything of the land or boundaries, except what he knew from the map which they had with them on the day the examination took place.

The case was on the 27th day of June, 1840, submitted on the motion to dissolve, and upon these pleadings and this testimony, the chancellor, on the 8th day of December, 1840, dissolved the injunction, and from the order dissolving this injunction, an appeal is prosecuted to this court.
posted by Lloyd at 2:12 PM

Mr. Justice HANDY delivered the opinion of the court.

This action was brought by the defendant in error against the plaintiffs in error, as warehousemen, to recover for the damage done to a quantity of cotton deposited in their warehouse on the Yalobusha River, and the question presented for consideration is, whether the verdict for the plaintiff below should be set aside as contrary to the law and evidence in the case.

It appears from the evidence, that shortly after the cotton was received in the warehouse, an unprecedented rain fell, causing a sudden and extraordinary freshet in the Yalobusha River, such as had not occurred for some sixteen or seventeen years; that this warehouse was high, and safe above all ordinary overflows; and that, from the year 1838 to the time of this freshet, the water had never been high enough to do material injury to cotton deposited in it; that when the river commences overflowing its banks, it is impossible to know how high it will go, but that, on several occasions, in anticipation of heavy rises in the river, the cotton has been removed from this warehouse to higher ground, and the water would go down without rising high enough to have damaged the cotton had it been left in it; that the plaintiff had cotton in the warehouse which was greatly damaged by remaining under water; that with a sufficient force, and by commencing to remove the cotton when the river first began to overflow its banks, the cotton might have been saved from damage, and if the sheds had been built two feet higher, the overflow would not have injured it; that the rain commenced falling on Sunday, and continued a day or two, and on Tuesday evening the river commenced running over its banks, and continued to rise until the last of the week, and by Thursday the water reached the warehouse, covering the lower tier of cotton bales, and half the next tier, and it was covered with water for several days.

*2 It is shown that, on Wednesday or Thursday, the defendants began to raise the cotton in the warehouse, in order to get it above the water, the house being nearly full of cotton, in the same way and about the same time that others engaged in the neighborhood in similar business did, and that defendants did the best they could to save the cotton from damage, and raised it as high as it could be raised. Failing to protect it by that means, they had no other way of saving it but by removing it in a flat boat; that they endeavored to remove it in that way, but the boat was sunk in the attempt, and there was no other boat at the village; that defendants used every effort to get hands to assist in raising the cotton and in removing it, but that owners of negroes were unwilling to have them employed in such work, which was dangerous to health and life, and they were unable to obtain a sufficient force to protect the cotton. In short, the proof goes to show, that after the overflow became alarming, the defendants set to work and used every exertion within their power to save the cotton; first, by raising it, which, under ordinary circumstances, would have been sufficient, and afterwards by removing it, which they were unable to effect for want of boats and hands, and the impossibility of obtaining them.

Upon this evidence, and under proper instructions from the court upon the law, the jury found a verdict for the plaintiff.

Although this court will not disturb the verdict of a jury which is not clearly against evidence, it is nevertheless our duty to set it aside when it is manifestly contrary to the evidence; and the evidence here shows that this is a case of that character.

The court properly instructed the jury, that if they should find from the evidence, that the plaintiff's cotton was damaged by a sudden and extraordinary overflow of the river, and that the defendants employed reasonable and ordinary diligence to prevent such damage, their verdict should be for them. That the law does not require a warehouseman to construct his buildings secure from all possible contingencies; if they be reasonably and ordinarily safe against ordinary and common occurrences, it is sufficient. That warehousemen are required only to exercise reasonable and ordinary diligence in the keeping and preservation of articles in their keeping, such as men ordinarily and reasonably exercise in their private affairs.

The evidence here showed that the defendants not only used ordinary care and reasonable diligence in providing for the preservation of the cotton, and in their efforts to save it after the danger appeared, but, in the language of the plaintiff's witness, that “they did the best they could to save the cotton from damage,” and, in the language of another witness, that they “used every exertion in their power to save the cotton from danger.” The entire evidence shows clearly, and without any room for doubt, that extraordinary diligence was employed by them. The only portion of the evidence which could tend in the least to show negligence, is the statement of the plaintiff's witness, that “with a sufficient force, and by commencing to remove the cotton when the river first began to overflow its banks,” the cotton might have been saved. But the evidence shows that so extraordinary an overflow could not have been anticipated by any ordinary prudence, and that the defendants acted like the plaintiff's witness, who was engaged in the same kind of business, in taking steps against the emergency. It also appears, that in all the overflows since 1838, there has been no necessity for removing cotton from this warehouse. To hold the defendants liable, then, on this ground, would be to require of them a degree of prudence and foresight not belonging to finite minds. The rule upon which the jury seem to have acted is, therefore, in opposition to the well established rules declared to them by the court, in regard to the prudence, care, and diligence which were required of the defendants under the circumstances of this case.
posted by Lloyd at 2:01 PM

*1 IN error from the circuit court of Jasper county; Hon. Stephen Adams, judge.

John Doe, on the demise of Hit-tuk-ho-mi, and of John Johnston, jr. sued Jared Watts, Isaac Garey and Alfred Brown, in ejectment. On the trial, Allan Yates, on behalf of the plaintiff, testified that Col. William Ward was the agent of the government of the United States, charged with the execution of the treaty of Dancing Rabbit Creek; that he was present in June or July, 1831, at Ward's agency, to have the claims of his children to land allowed; when Ward informed the Indians there, that all who wished to stay and become citizens had the right to do so, and that he was there ready to register their applications; and had a book or register open for that purpose; when a number had their names registered. Capt. Red-post-oak was at the agency at the time, and approached Col. Ward, holding a large bundle of sticks in his hand, about six or eight inches long, and informed the agent, that he had come to register for himself and people, to stay and become citizens under the treaty, and that the sticks represented the heads of the families and the number and ages of their children; but Col. Ward refused to receive them, on the ground that they were too many; at which Capt. Red-post-oak turned angrily off. That subsequently the witness was at the agency, and found the register of Indian names mutilated, and in part destroyed; the registry of his own children and others that he had registered being among those torn out; that Col. Ward told him that one Daniel Folsum, had during his absence entered the agency, and torn out the names of a great many Indians, in order to force them to emigrate west, in order to his own election as a chief among them.

Chish-a-ho-mah, alias Capt. Red-post-oak, testified that at the date of the treaty of Dancing Rabbit Creek, Hit-tuk-ho-mi was a Choctaw, head of a family, and had an improvement on the land on which he resided at the time, and continued to live on it for about eight years, until he was dispossessed by a white man; that within six months from the ratification of the treaty, Hit-tuk-ho-mi employed him as his agent to notify Col. Ward that he wished to remain and become a citizen of the state, and receive his benefit of the 14th article of the treaty; that he did so notify Ward; the witness was the agent for all his tribe, and Ward requested witness to give him their names; they were so numerous, Ward refused to register them all, and told witness it should all be right; he is positive he gave Col. Ward the name of Hit-tuk-ho-mi, with the request that it should be registered, as he was his near neighbor and a man of standing and influence. On a second visit, Ward positively refused to register the names of those he was agent for.

The residence and application of Hit-tuk-ho-mi, and his continuance on the land in controversy, until dispossessed about four years prior to the suit by a white man, were proved by several other witnesses; the evidence of the defendant, upon the land in controversy was also proved. The plaintiff then read a deed from Hit-tuk-ho-mi and wife to John Johnston, sen. to the land, and closed their case.

*2 The defendants introduced evidence to impeach the character for veracity of Capt. Red-post-oak, and introduced also the patents from the general government, dated in 1842, predicated on certificates of entry, in 1833, of the land in controversy, which was all the evidence before the jury.

The plaintiff asked the court to instruct the jury, that if they believed from the evidence, that Hit-tuk-ho-mi was a Choctaw Indian, the head of a family at the date of the treaty, and within six months thereafter, notified the United States agent, by agent or otherwise, of his intention to become a citizen, and resided on the land for five years, next ensuing, his title was complete. This instruction as asked, the court refused to give; but gave other instructions asked for by the plaintiff, which it is not deemed necessary to notice.

Nine charges were asked and given by the court for the defendant; of which it will be requisite to note only the following, viz.:

1. That a patent is the highest evidence of title; it is evidence that all the prerequisites have been complied with and cannot be questioned either in a court of law or equity, unless it be on the ground of fraud or mistake.

2. That before any title can be gained by a second patentee, the first patent must be impeached and set aside, which can only be done in a court of equity.

3. That priority of date of patent is the best evidence of title, although the opposite party made the first entry.

The jury found for the defendants; and the plaintiff below prosecutes this writ of error.

Mr. Justice CLAYTON delivered the opinion of the court.

This case arose under the 14th article of the Dancing Rabbit treaty, and bears a strong resemblance to cases heretofore decided by this court. Coleman v. Doe, ex dem. Tish-ho-mah, 4 S. & M. 40; Newman v. Harris & Plummer, 4 How. 560. A verdict and judgment were rendered for the defendants, and the case brought by writ of error to this court. Several charges were given by the court to the jury, at the instance of the defendants; these form the basis of the errors assigned in this court. Only part of these charges need be noticed.

The first is, that a patent is the highest evidence of title; it is evidence that all the prerequisites have been complied with, and cannot be questioned, either in a court of law or equity, unless it be on the ground of fraud or mistake.

2. That before any title can be gained by a second patentee, the first patent must be impeached or set aside, and this can only be done in a court of equity.

3. That priority of date of patent is the best evidence of title, although the opposite party made the first entry.

These instructions are opposed to the principles laid down in the cases above referred to, as well as to cases in the supreme court of the United States.

In Stoddard v. Chambers, 2 How. S. C. Rep. 317, the court say, “On these facts the important question arises, whether the defendant's title is not void. This question is as well examinable at law as in chancery..... The patent of the defendant having been for land reserved from such appropriation, is void.” Again, in Grignon's Lessee v. Astor, Ib. 344, the court say, “the title became a legal one by its confirmation by act of congress, which was equivalent to a patent. It was a higher evidence of title, as it was a direct grant of the fee, which had been in the United States, by the government itself, whereas the patent was only the act of the ministerial officers.” These cases clearly show that these charges were erroneous; and show the correctness of the principles heretofore asserted in this court.

*3 Most of the other instructions relate to the registration of the Indian, and his residence upon the land. The law upon these points has been settled in this court by the foregoing cases, and we need not repeat what is there said. The charges do not conform to those decisions.

For these errors, the judgment must be reversed, and a new trial granted. It is unnecessary to remark upon the other points in the cause.

Judgment reversed, and new trial awarded.

Miss.Err.App 1846.
DOE ex dem. HIT-TUK-HO-MI et al. v. JARED WATTS et al.
7 Smedes & M. 363, 15 Miss. 363, 1846 WL 1698 (Miss.Err. & App.), 45 Am.Dec. 308
posted by Lloyd at 1:53 PM

From Westlaw:

*1 THIS was a special action on the case, brought by James P. Thompson against William H. Young, to the May term, 1838, of the Circuit Court of Hinds county. The declaration contained two counts: The first, averring that the plaintiff hired to the defendant a slave, named Marsh, for the term of one year, commencing on the first day of April, 1837; and that in consequence of the severe and cruel treatment of the defendant, the slave ran off, and was lost to the plaintiff, &c. And the second, the hire of the slave, and his elopement on account of mal-treatment by the defendant; and also, the conversion of the slave to the defendant's own use, &c. The defendant pleaded, not guilty. On the trial, the plaintiff read the deposition of Benjamin Alford, which proved, that just before Christmas, in 1837, deponent heard George Trawick ask the defendant, if he had heard of the negro man, Marsh, he had hired of the plaintiff; and defendant answered, he had not, and further said, he did not care to know where the negro was; defendant also said, that before the negro left, he had his knife into his breast a piece; and assigned as a reason for stabbing him, that the negro tried to keep out of his way; and when defendant wished to correct him for it, he was making off, when defendant drew a pistol, made him stop, and put his knife in his breast. This occurred on defendant's farm. The plaintiff then introduced George Trawick, whose testimony was substantially the same as Benjamin Alford's. He then read the deposition of Edward S. Farish; which proved, that early in 1837, in March or April, defendant hired the negro, Marsh, of plaintiff, at thirty-two dollars per month, from that time till the first of January next ensuing. Mr. Thompson was then called by the plaintiff; who testified, that after Marsh ran away, he heard Young say a negro man, named Edmund, ran off at the same time with Marsh; that they had taken off two guns from his, Young's mill, one of which had since been found in Scott county, where the negroes were seen and shot at by some white persons; that Marsh had not been taken, and he cared but little if he never was; and, that the plaintiff was in the southern part of Alabama in the fall of 1837, and did not return to Mississippi until about the month of October. The plaintiff then introduced R. Hatcher, who testified that at the time the negro ran away, he would have sold for thirteen or fourteen hundred dollars, in the then currency of the country; but he would not now (at the time of trial) sell for more than six or seven hundred dollars. The plaintiff then read to the jury an advertisement, made by the defendant, as executor of the estate of Jacob R. Scott, deceased, dated 4th of October, 1837, offering a reward of $50 for the apprehension and delivery of the negro man named Edmund, and here rested his case. The defendant then read to the jury the depositions of Henry Everett and Waters S. Chilson, which proved in substance, that in the summer and fall of 1837, Everett was the overseer on the farm of the defendant, and Chilson the superintendant and foreman of his mill; that about four weeks before Marsh ran away, defendant and Everett went out into the field where he ought to have been at work; shortly after they reached the field, Marsh made his appearance on the outside of the fence; defendant called him, and he attempted to run off, when defendant drew a pistol, and told him if he did not stop he would shoot him. Marsh, however, continued to walk off until defendant crossed the fence and overtook him, and struck him with his walking cane. He was then tied and taken to the mill, and whipped by the defendant with a cow skin, in the presence of Everett, Chilson, and others. The whipping was not severer than is usual in such cases; no blood was drawn, nor the boy at all injured. He continued to work on the farm as usual, never complained of any injury, appeared to be in good health, was well clothed, expressed himself as satisfied with the provisions allowed him, and was treated precisely as defendant's own servants were treated up till the time he ran away, which was about four weeks after he was whipped. A negro man named Edmund, belonging, as the deponents understood, to the estate of J. R. Scott, deceased, ran off at the same time; and they carried with them two guns. Deponents never saw Marsh afterwards. At the time he ran away, and for a week preceding, the defendant was absent at Vicksburg. Deponents considered defendant a good master; he clothed and fed his negroes well, and never whipped them cruelly. Never heard of his whipping Marsh but the one time, and did not believe he ever stabbed or injured him; when he was whipped, as above stated, he was naked, and no wounds were visible on his person. The defendant then introduced R. B. Hatcher, who testified that the day after Marsh absconded, search was made for him in the swamp near defendant's farm; that a month or two afterwards, it was ascertained that the negro Edmund, who absconded with Marsh, was in jail in Alabama, when defendant employed witness to go for him, and to inquire along the road for Marsh; witness did go for Edmund, and brought him home, but could hear nothing of Marsh. James H. Boyd testified, that six or eight weeks after Marsh ran away, he was at the residence of the defendant, in Jackson, and heard much conversation between the plaintiff and defendant about the negroes Marsh and Edmund; their being seen in Scott county, and the finding of the guns, was mentioned, and it was finally agreed that nothing further need be done until the negroes should be heard of again. The plaintiff attached no blame to the defendant, nor did he say anything about holding him liable for the value of the negro. Smith testified that some time in the summer or fall of 1837, while he was residing in Scott county, near the place where the guns, said to have been taken off by Marsh and Edmund, were retaken, he was employed by the defendant to search for, and recapture said negroes if possible; and that he did make diligent search for them, but they were never heard of in that neighborhood afterwards. This being all the evidence offered on either side, the Court instructed the jury; “1st. That admissions made in light conversations are but presumptive evidence, and may be rebutted. 2d. If the boy Marsh ran away without cruel treatment on the part of Young, and Young made proper exertions to recapture him, without success, Young is not liable for the negro.” But the Court refused to instruct the jury, when asked by the defendants to do so, “that if the boy ran away without cruel treatment, and Young thereupon gave notice of his absconding to Thompson, on the first opportunity thereafter, he was, after such notice, no longer bound to use exertions for his recapture.”
posted by Lloyd at 1:36 PM

The work of Emmanuel Todd is significant because he proposes a typology of the basic family forms throughout the world in The Explanation of Ideology: Family Structures and Social Systems (1985). Building upon the model of an eighteenth-century sociologist, Fr�d�ric Le Play (1806–1882), Todd makes a bold proposal that identifies the basic family types with different ideologies:

A universal hypothesis is possible: the ideological system is everywhere the intellectual embodiment of family structure, a transposition into social relations of the funda mental values which govern elementary human relations . . . One ideological category and only one, corresponds to each family type (1985:17).

Whether or not one accepts Todd's hypothesis of a one-to-one correspondence between family form and ideology, his typology of family forms is useful to analyze large, cross-cultural patterns. He employs the variables of spousal choice (determined by custom, parents, or individual choice), spousal relationship (exogamy or endogamy), division of inheritance (equality or unequal shares), and cohabitation of married sons with their parents. His typology yields seven basic family forms:

1) Exogamous Community Family: equal distribution of inheritance; cohabitation of sons with parents; and exogamous (33-54)—e.g., ancient Roman, China, and Russia.

2) Authoritarian Family: unequal distribution of inheritance—one son inherits; cohabitation of the married heir with parents; and exogamous (55-98)—e.g., Germany, Japan, and Korea.

3) Egalitarian Nuclear Family: equal inheritance delineated by rules; no cohabitation of married children with parents; and exogamous (99-132)—e.g., northern France, northern Italy, and Greece.

4) Absolute Nuclear Family: no definite inheritance rules; no cohabitation of married children with parents; and exogamous (99-132)—e.g., U.S., the United Kingdom, and the Netherlands.

5) Endogamous Community Family: equal inheritance delineated by rules; cohabitation of married sons with parents; and endogamous (133-54)—e.g., ancient Israelites, and the traditionally Muslim countries of the Middle East.

6) Asymmetrical Community Family: equal inheritance rules; cohabitation of married sons with parents; and restricted endogamy—matrilateral cross-cousins (155-70)—primarily southern India.

7) Anomic Family: uncertainty about brothers' equality—inheritance rules egalitarian in theory, flexible in practice; cohabitation of married children with parents rejected in theory, but accepted in practice; and the possibility of endogamy (171-90)—e.g., Indonesia, Philippines, and native South Americans.

One should keep three factors in mind when employing Todd's typology. First, these are dominant forms in a given society, not necessarily practiced by every single family. Secondly, the typology is significant for historical studies because family forms are relatively constant over time; this is especially true in peasant societies. And thirdly, Todd has not fully taken into account the role dowry systems play in inheritance practices.
posted by Lloyd at 6:58 PM

The Boardinghouse in Nineteenth-Century America (Hardcover)
~ Wendy Gamber
Wendy Gamber (Author)
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Review
"A superb study. Gamber has identified a major lacuna in our historical understanding of nineteenth-century domesticity, women's work, family, and urban history, and filled it with rich detail and a nuanced treatment of class and ethnic differences." - Angel Kwolek-Folland, University of Florida"
Review

"A superb study. Gamber has identified a major lacuna in our historical understanding of nineteenth-century domesticity, women's work, family, and urban history, and filled it with rich detail and a nuanced treatment of class and ethnic differences." -- Angel Kwolek-Folland, University of Florida


"Gamber skillfully integrates analysis of the changing realities and perceptions of boardinghouse life. She is sensitive to the contradictions between domestic ideals and actualities and teases out the broader significance of these oppositions. Moreover, her narrative strategy provides nice continuity across the book's chapters, permitting the analysis to explore broad issues while being grounded in stories about concrete individuals." -- Thomas Dublin, Binghamton University


"Gamber offers a very valuable account of the evolution of business, society, and culture in the U. S. by examining the development of boardinghouses in the full contexts of nineteenth-century American history. Thoroughly researched in a wide range of primary and secondary sources, The Boardinghouse in Nineteenth-Century America tells an important story about American life." -- Mansel Blackford, Ohio State University


"Centers on the important recognition that the 'golden age of the bourgeois home' was also 'the age of the boardinghouse,' when an estimated one-third to one-half of all urban residents either took in boarders or were themselves boarders. Boardinghouses, Wendy Gamber demonstrates, were unsavory counterparts to the idealized home; they offered a constant reminder that the much-vaunted distance between the home-as-haven and the venal, worldly marketplace was a fiction. The Boardinghouse in Nineteenth-Century America uncovers in rich detail the social experiences of boardinghouse life by various sorts of residents -- young and old, female and male, middle-class and working-class -- and various sorts of boardinghouse keepers, ranging from shrewdly ambitious businesswomen to impoverished widows. This valuable and engaging study takes an understudied phenomenon of U.S. urban history and draws from it a rich study of the American understanding of 'home,' and the ways that market and labor forces have made it vulnerable from its first emergence as the summum bonum of middle-class life." -- Karen Halttunen, University of Southern California


"Ms. Gamber paints an exhausting picture of the typical landlady's work and expense and the residents' grumblings." -- Nina C. Ayoub, Chronicle of Higher Education


"Gamber does a good job introducing and discussing this once-ubiquitous institution." -- Choice


"A lively account." -- Book News


"This book is an important scholarly contribution that helps us understand how the most basic challenges of life... had a profound impact on the American past. It is a model of creative social history that encourages scholars to transcend traditional intellectual boundaries and begin new conversations in a fragmented academic world." -- Eric J. Morser, Enterprise and Society


"Crucial reading for scholars interested in the nineteenth-century city, women's work and entrepreneurship, and the development of domestic ideology." -- Elaine Frantz Parsons, American Historical Review
posted by Lloyd at 10:10 AM

michael grossberg's governing the hearth

Presenting a new framework for understanding the complex but vital relationship between legal history and the family, Michael Grossberg analyzes the formation of legal policies on such issues as common law marriage, adoption, and rights for illegitimate children. He shows how legal changes diminished male authority, increased women's and children's rights, and fixed more clearly the state's responsibilities in family affairs. Grossberg further illustrates why many basic principles of this distinctive and powerful new body of law—antiabortion and maternal biases in child custody—remained in effect well into the twentieth century.
Product Details

* Paperback: 436 pages
* Publisher: The University of North Carolina Press (August 1, 1988)
* Language: English
* ISBN-10: 0807842257
* ISBN-13: 978-0807842256
* Product Dimensions: 9 x 5.9 x 1.1 inches

=========================

Man and Wife in America: A History (Paperback)
~ Hendrik Hartog
Hendrik Hartog (Author)
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posted by Lloyd at 10:05 AM

Anya Jabour, Marriage in the Early Republic,

"This book has much to offer students and scholars of the early republic, and of gender relations in the nineteenth century." -- Karin Wulf, Pennsylvania Magazine of History and Biography


"Clearly written and interpretively convincing. Jabour's singular contribution lies in the wealth of richly textured detail through which the reader comes to understand marriage both as a social institution and as the lived experience of real people." -- Anne M. Boylan, Journal of Southern History


"Jabour's book has the advantage of giving us a microhistorical look at a single, well-documented marrriage, allowing her to trace the evolving tensions between ideals and realities over the course of their entire marriage and parenting experience. The result is engaging but sobering, as the reader is forced to confront the frustrations produced by the tensions in a marriage that was regarded as a model, loving union by the couple and their contemporaries." -- C. Dallett Hemphill, Journal of American History


"A fascinating portrait of an intense, if sometimes rocky, relationship." -- Glenna Matthews, American Historical Review
Product Description
William Wirt practiced law in Virginia and Maryland in the early national period and served as attorney general under James Monroe and John Quincy Adams. Elizabeth Wirt managed the household and cared for the Wirts' large family during her husband's frequent work-related absences. For more than three decades, the couple struggled to reconcile different daily pursuits with a commitment to marriage as a partnership of equals. In Marriage in the Early Republic, Anya Jabour provides detailed analysis of a marital relationship so thoroughly documented that it illuminates gender relations in nineteenth-century America.

On one level, this is a story–a rich narrative full of the joys, sorrows, tensions, and the give-and-take of an American marriage. But because changing gender roles and expectations in this period caused discordance and forced adjustments, Jabour also provides a microhistorical analysis of a broad pattern. Placing the Wirts' marriage in a larger context, she shows how problematic marriage–and the balancing of domestic and childcare responsibilities–could be as well-to-do Americans developed their own cultural and social expectations. By examining patterns of love and marriage in a formative era, Marriage in the Early Republic offers insights into romance and relationships in our own time as well.
posted by Lloyd at 10:04 AM

* National Boundaries, Colonized Spaces: The Gendered Politics of Residential Life in Contemporary Jerusalem
* Author(s): Thomas Abowd
* Source: Anthropological Quarterly, Vol. 80, No. 4 (Fall, 2007), pp. 997-1034
* Published by: The George Washington University Institute for Ethnographic Research
* Stable URL: http://www.jstor.org/stable/30052771

Abstract
This article explores the gendered politics of residential space in the contested city of contemporary Jerusalem. I focus on the spatial construction of identity and alterity in this urban center with the aim of detailing how competing national identities are expressed in place and space. Looking specifically at the quotidian realities that unmarried, adult Palestinian women experience across this divided terrain, this article analyzes the potent intersections of gender and class-based oppressions, racism, and national chauvinisms under Israeli occupation. This article examines the multiple ways in which both Israelis and Palestinians have deemed unmarried, Palestinian women as uout of place," particularly as the latter have increasingly traversed different national and cultural spaces in Jerusalem and struggled for greater degrees of independence beyond the boundaries of the familial realm. This article challenges the bulk of the scholarly literature on this national conflict, writings that tend to ignore the colonial character of Israeli rule and the regimes of land and housing so central to the Jewish State's continual appropriation and reconfiguration of Palestinian land. I argue that the failure to properly examine the colonizing dimensions of Israeli power has hampered understandings of spatial relations in Jerusalem and across the fractured landscape of Palestine and Israel more generally.
posted by Lloyd at 8:33 AM