SILVER
THREADS
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VOLUME IV |
ISSUE No XI |
NOVEMBER 2006 |
http://homepages.rootsweb.com/~silver/south/newsletter.html
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Written and Published Online by
John Silver
w/contributing
articles by various Silver cousins
Hello
Family,
Fall is upon us and the weather has gotten nippy as of the mornings. It is a welcome break after a long hot summer. I do hope all of you are able to enjoy it.
I was fortunate to receive a book about the Merrill Family of Madison County. I had been looking for information on my grandmother, Laura Coretta Merrill Silver. Cousin Clarence “Till” Tillery sent me a copy and I treasure it. I have made an abbreviated copy to include in this month’s letter. The title of the book is “Captain Benjamin Merrill and the Merrill Family of North Carolina.” It was written by William Ernest Merrill, M.S. and was reprinted in 1986. It was first published in 1935 and I am sure you will find it interesting.
I also found an article that you should find interesting. It explains what land patents are and the
meaning of “heirs and assigns.” Since a lot of us have been looking in the data
files for all the old wills, deeds, etc., I for one have always been confused
by the terminology. Now I know why.
Cousin John
THE MAN
Captain Benjamin Merrill, one of the first North Carolinians to give his life for the sake of Liberty, was hanged by the British at the Courthouse in Hillsborough on the 19th day of June, 1771.
He was a descendant of Richard Merrill who had come across from England about 1665 to make a home in the New World. The freedom loving and adventuresome spirit which marked his ancestors as far back as 1572 was very clearly shown in the life of Benjamin Merrill, for he, in his turn, left his home in Hopewell, New Jersey to make a journey into a far and little known southland, where he encountered many hardships and became known as a courageous and distinguished man. Perhaps another reason, other than adventure, for his departure from New Jersey was the fact that his father died without giving him a plantation as was the custom of that day. Benjamin’s southern journey ended in the Jersey Settlement of Rowan County, now Davidson County, North Carolina. This particular part of the old North State was supposed to have been settled by a group of New Jersey Baptists. The Merrill plantation was located about two miles east of the Jersey Church and on the edge of the settlement, which was about five miles south of the now prosperous little city of Lexington. Land records show that he purchased 1042 acres in the Parish of St. Luke on the north side of the Yadkin River from George Smith on September 9 and 10, 1760. The old plantation home was surrounded by a grove of beautiful and majestic oaks and cedars. One old cedar stands today to mark the old house place. One writer laments the fact that these venerable old trees cannot speak, for they could tell us of much valuable history of the eventful years between 1760 and 1800. Tradition says that Benjamin was a gunsmith and that a small creek, at the foot of the hill near where his residence stood, afforded the power necessary to operate the simple machinery used in boring out the barrels. In the evening he would arrange a barrel for boring, start his crude machinery and leave it running all night. By morning the barrel was ready for the next step in its manufacture.
We know that our hero was in the Jersey Settlement in 1756, four
years before any land deeds were recorded, for, “on January 24, 1756, Benjamin
Merrill and others (were) named to appear (in court) to show reasons for not
going out against the Owens, who it was thought committed several misdemeanors,
etc.” We know further that he was a young married man when he started to North
Carolina. He had married Jemima Smith,
the daughter of Andrew Smith 6 of
Hopewell, New Jersey, and their second son, John, was born at Hopewell, New Jersey on December 11, 1750. It is evident that the dangerous and weary
trip to North Carolina came in the five years between 1751 and 1756.
HOW DO YOU SPELL YOUR
NAME?
There are numerous ways
of spelling the family name. Oftentimes
in the same document it is written in several forms, e.g., in one Court Record
we find Merrill, Merel, Meril and Merrell.
In another record Marrell and Morrell are used. When the French family of De Merle went to
England it was necessary for them to use an English spelling so it was changed
to Merrill. In most of the documents, writings, et
cetera this -- Merrill -- spelling is used.
Since it is the most commonly used and the oldest, it has been adopted
for use throughout this book.
The Battle of Almance Creek is more important in its results than many of the more highly vaunted incidents of later times, and yet few of us have any knowledge of this exploit. “Men will not fully be able to understand North Carolina till they have opened the treasures of history and become familiar with the doings of her sons, previous to the Revolution; during that painful struggle; and the succeeding years of prosperity.” – W. Foote.
The people of North Carolina had been sorely tried by ten long years of weary struggle against the unjust rule of England. Their money was wrung from them by a horde of greedy officers of the law as well as the Governor himself. When they could no longer endure their great wrongs they rose up against them, thought the struggle cost them tears and blood.
Governor Tryon not only permitted but instigated his officers to heap taxes upon the people when money was exceedingly scarce in the colony. This scarcity was due to the continuous seizure of the gold by the mother country, and by the rapacious colonial officers. As one instance of this oppression, we find that fifteen dollars was required for a marriage license although the fee allowed by law was one dollar. When the people complained to the Governor, he treated their complaints with contempt and scorn.
At last the men from Orange County declared they would no longer submit to this robbery. They resolved to find out whether their taxes were legal, and to pay only such as the law required. They met at Maddock’s Mill, near Hillsborough, on the 4th of April 1767, and formed themselves into a body called Regulators, an association for regulating public grievances and the abuse of power. From this time on there was constant friction between the Governor’s officials and the Regulators. With little excuse or none, Tryon threw their leaders into prison, while the Regulators in turn lost no chance of annoying his hated officers. The cause of the Regulators was popular through the central counties, and numbered in its followers some of the best people in the colony. The disturbances was but the outflashings of a spirit of deep resentment against corrupt officials which prevailed in the whole Piedmont section of the colony, and was felt on the distant sea-board even before the Stamp Act bred defiance in the East. The people of the middle counties had long been groaning under the exactions of the officers of the law., and simultaneously, though without concert of action, “pleading with the anguish in their souls” for deliverance from the extortions and abuses of power under which they suffered. It would hardly be possible for discontent so widespread not to evoke some lawlessness. When men bred to count themselves freeman have seen law disregarded and justice trampled under foot, what wonder if they fail to respect the law and its officers.
The Governor finally decided to teach the Regulators a lesson, as well as enhance his personal prestige. The Regulators were to have no more meetings. They were to concede to the graft executed by the attorneys, clerks, tax collectors and other petty officials, who practiced extortion in every possible way. So with a force of three hundred men, six cannons and a baggage train, he left New Bern to terrify the Regulators. He was joined at several points along the road by companies of militia brought up from other sections by his trusted officers. With eleven hundred men, on the 14th of May 1771, he encamped on the banks of Almance Creek in Orange County, which is now a part of Almance County.
The news spread quickly that Tryon was coming with his army to compel the Regulators to obey him. It was a call to duty to all patriots. The whole country had been aroused. From far and near came crowds of brave men to whom freedom was dearer than life. So it came about that on the evening of the 14th of May, only five or six miles west of Tryon’s camp, about 2000 Regulators were gathered.
Few of the men came expecting to fight. They had no commander. Not more than half of them had guns. Tryon had again and again made promises to right their wrongs but had not kept his word. Still they hoped now he would be willing to hear their complaints and settle their grievances. They wished to make one more appeal for JUSTICE, and if he refused to hear them, then they would defend their liberties with their lives.
On the morning of the 15th of May they sent a message to Tryon, once more asking him to regard their rights. He promised them an answer by noon the next day.
Early the next morning Tryon marched his army within half a mile of where the Regulators were encamped, and drew his men up in line of battle. He then sent a paper which was read to the Regulators, declaring that they must lay down their arms, go home and obey their King.
The Regulators refused to do these things.
Both parties advanced. As they drew near to each other, Robert Thompson, who had been sent by the Regulators to entreat with the Governor, turned to join the ranks of the patriots, the irritated Tryon snatched a gun from the hands of a militiaman and shot Thompson dead. It was necessary for him to give the second order before the troops would fire upon the Regulators. The battle lasted for two hours. The Regulators, being poorly armed and short of ammunition, could not successfully cope with Tryon’s forces and soon took to tree fighting and later dispersed to escape capture and execution, which fate, however, overtook several of the leaders and others.
Before noon that day the Regulators received Tryon’s answer to their petition — an answer written in their own blood.
When the Governor returned to Hillsborough, he had six of the leaders sentenced to be hung, and just a month after the Battle of Almance, these six men, martyrs of liberty, gave up their lives on the gallows, this being the 19th day of June, 1771. Just before the execution there was a grand parade through the town, this parade led was by the Governor and his troops.
We are justly proud that the soil of North Carolina is hallowed by the blood that was shed in the first battle fought for the cause of freedom in the colonies. Bancroft says, “The blood of the Rebels against oppression was first shed on the branches of the Cape Fear River.” Dr. Caruthers states, “The Regulation is now regarded by our greatest men as the very germ of the Revolution in this state.” Some historians, Bassett in particular, feel that the cause of the Regulators was only an insurrection, nevertheless it is worthwhile to note on page XIV of Book 8 of the North Carolina Colonial Records, “Of the 47 sections of the State Constitution adopted in 1776, thirteen, more than one-fourth, are embodiment of reforms sought for by the Regulators. And yet, though many men have maligned the unhappy Regulators, no man has dared to reflect upon the “patriots of 76” who thus brought to such glorious end the struggle the Regulators began in which they fought, bled and died. The War of the Regulation ended, not with the Battle of Almance in 1771, but with the adoption of the State Constitution in 1776.”
Benjamin Merrill came from New Jersey prior to 1756 and settled in
the Jersey Settlement near Salisbury.
He was a Captain of the Rowan County Militia prior to the movement of
the Regulators. Captain Merrill was one
of the unfortunate victims of Tryon’s brutal tyranny. He was on his way to join the Regulators at Almance, with a
company of over three hundred men, when he intercepted Gen. H. Waddell and
forced him to flee to Salisbury, after taking most of Waddell’s men as
prisoners. He and his men were within a
day’s march of Almance when the roar of battle met them, and after hearing of
the victory of the Governor’s army he disbanded his men and returned home. He regretted that he was not present at the
battle so he could fight with his fellow patriots. Some accounts give him credit for being in the actual
battle. He was taken prisoner by
Colonel Fanning and his men and brought to Tryon’s Jersey Settlement Camp on June
1, 1771. After being put in chains with
the other prisoners and dragged through the county to Hillsborough, he, on June
19, 1771, paid forfeit with his life.
“The Supreme Court of Oyer and Terminer, for the Tryall of the
Regulators in the Back Country, began at Hillsborough on the 30th of
May and continued to the 20th this Instant—(June 1771); during which
12 were tried and condemned for High Treason.
The Governor was pleased to suspend the Execution of Six, till his
Majesty’s Pleasure be known; the other six were executed on Wednesday, the 19th
of June, at Hillsborough. Among the
last, the most distinguished was Benjamin Merrill, who had been a Captain of
Militia in Rowan County. When the Chief
Justice passed Sentence, he concluded in the following manner: ‘I must now close my afflicing Duty, by
pronouncing upon you the awful Sentence of the Law; which is that you, Benjamin
Merrill, be carried to the place whence you came, that you be drawn from thence
to the Place of Execution, where you are to be hanged by the Neck; to be cut
down while yet alive, that your Bowels be taken out and burnt before your Face,
that your Head be cut off, your Body to be divided into Four Quarters, and this
be at his Majesty’s Disposal; and the Lord have Mercy on your Soul’.” [1]
In this crucial situation he gave his friends satisfactory evidence that he was prepared to die, for not only did he profess faith in Christ, his hope of Heaven, and his willingness to go, but sang a Psalm very devoutly and died like a Christian soldier. On being permitted to speak just before the execution, he said that fifteen years previously he had been converted but had back-slidden, yet now felt he was freely forgiven and that he would not change places with anyone on the grounds, in concluding he referred to his wife and 8 children. It is said that one of Tryon’s soldiers was heard to declare that if all men that went to the gallows with a character such as Captain Merrill’s, “hanging would be an honorable death.” Captain Merrill was a man held in general Esteem for his honesty, integrity and piety.
Those that have made an extensive study of the English and French histories, genealogies and works of heraldry tells us that the Merrill Family of England was descended from the French Huguenot family De Merle of the Province of Auvergne in central France. This family migrated from this mountainous section of France after the bloody events of St. Bartholomew’s Day in Paris in 1572. The tragedy of St. Bartholomew’s Day marked the culmination of the great struggle between Catholics and Protestants which devastated France in the latter half of the sixteenth century. During the reign of Francis I and his three successors the Huguenot (French Protestant) was formed and the nation gradually separated into two parties so fanatically hostile that the extermination of the weaker seemed the only possible means of reestablishing the unity of France. The Massacre of St. Bartholomew’s Day is one of those historic crimes which defeated its own purpose by reacting against perpetrators and advanced the cause of those who suffered. One eminent author 1 stated that the evidence presented in the Old Coat of Arms, taken along with all the other facts, was conclusive that the Merrill Family of England was of French Huguenot origin.
The Coat of Arms of today is described as, “Arms. Argent, a bar azure between three peacocks’ heads, proper. Crest, a peacock’s head rested proper.”
About a hundred years passed from the time the Merrill family came to England and the time its descendants appeared in America.
Richard and his wife, Sarah Wells Merrill, of a little country town in Warwickshire, on a rocky hill on the right bank of the Avon, left their English home and sailed for America and settled in Northfield, Staten Island, New York, about the year 1675. They had five sons, William, who went out west; Richard, who became a member of the Colonial Assembly and Judge of the County Court; Thomas, Philip and John.
William, the eldest started on a western journey. Going west in those days did not mean what it does today; a journey of a few miles was a great undertaking. We are able to trace his course down through Monmouth, New Jersey. He owned land in Middletown in December 1693. It is definite that he did not remain there for “on Dec. 2, 1715, James Hubbard recorded the cattle wear mark formerly used by William Merrill.” It was only a short time until William’s name appeared on the tax lists at Hopewell.
In 1722 the tax lists of Hopewell showed that he and his sons, William Jr. and Benjamin were assed for taxes. In fact, William Sr. was assessed for 300 acres of land, 24 cattle and horses, et cetera. William Sr. lived only a short time after he arrived in Hopewell; his Will was proved on February 23, 1724, in Hopewell. In this Will he mentioned his sons, William, Benjamin, Joseph and his loving wife Grace. Benjamin and Joseph received the estate of their father. It appears that William Jr. had already been given his endowment.
William Jr. was married in 1729-30 to Mrs. Penelope Stout Jewell, widow of Thomas Jewell. This was his second marriage. Penelope was a granddaughter of Richard and Penelope Van Princess Stout, who were among the first distinguished settlers of the Hopewell district. William Jr. and Penelope had three sons and one daughter. After a careful consideration of all the available records together with family traditions, we concluded that Captain Benjamin and William Merrill of Rowan County, North Carolina, were two of the three sons of William Merrill Jr. of Hopewell and Thomas was the other. William Jr. of Hopewell died in 1740 and his widow, Penelope Merrill, refused to trouble herself with the small estate of her husband because it, “will be profitless trouble for me which I am unable to undergo.” Soon after his death she married Isaac Herrin and lived until July 11, 1776, when she died “in good old age.” “The text of her funeral sermon was taken from John xiv: 19.”
There have been various names given to the wife of Captain Merrill. My grandfather wrote in his notes that her name was Mary Smith; others contended that she was Jemima Stout of Stoutsburg, New Jersey; others named her Sarah. Now we know that she was none other than Jemima Smith of Hopewell, New Jersey. This fact is self-evident if we consider the records. Andrew Smith made his will October 17, 1784, and bequeathed to his daughter Jemima “one Spanish Pestole to her forever, if it should happen that my Daughter Jemima Should become poor and Needy in this life I do require my Exers to give her Reasonable Relief out of my estate. I also give and devise to my Daughter Jemima’s children that she bear to Benjamin Merrill to Wit: Samuel, John, Andrew, William, Charles, Elijah, Jonathan Merrill, Ann McCleary and Penelope Merrill to all and each of them Severally fifty pounds. Now if we examine the records in Rowan County, North Carolina, we find land deeds made and signed by Benjamin and Jemima Merrill, when they sold part of their holdings to John Ganoe in 1770.
Benjamin died on June 19, 1771 and his widow, Jemima Merrill, married Harmon Butner of Rowan County on February 20, 1775.
On May 7, 1777, Jacob Wiseman and Robert Moore were asked to arbitrate a matter concerning the estate of the late Benjamin Merrill between Harmon Butner and the Merrill Children, Samuel, John, Andrew, William, Benjamin and Penelope, and Boyd McCreary and Anna, who have the interests of Charles, Elijah and Jonathan. Note that this list of the Merrill children corresponds precisely with that found in Andrew Smith’s Will. There are many other records that bear out this point.
Just a few minutes before Benjamin was executed, he is quoted as saying: “In a few minutes I shall leave a wife and ten children. I entreat that no reflection be cast on my account and, if possible, I shall deem it a bounty, should you gentlemen petition the Governor and Council that some part of my estate may be spared to the widow and fatherless.” Here follows what Governor Tryon said, “Benjamin Merrill, a Captain of the Militia, left it in charge of the officers to solicit me to grant his plantation and estate to his wife and eight children. Wm. Tryon
Mr. A. J. Owen, a member of the Jersey Church, said, “’that this grant was actually made as requested to the widow and children, and that the document given by Governor Tryon was handed down, with other old papers belonging to the Merrill family, and finally landed in the hands of Wilson Merrill, brother-in-law of Mr. Owen. In 1855 Mr. Owen got possession of this rare document and held it until 1872, when he went West, at which time it slipped from him. Even though the paper was a hundred years old, the writing was just as legible as when first given. It was written on coarse heavy paper and folded like a deed—it was in fact their deed then. Mr. Owen committed to memory its contents. On the back of the folded instrument was inscribed: ‘To Jemima Merrill and her Children.’ The contents were: ‘I, Wm. Tryon, Governor and Captain-General for the province of North Carolina:
To Jemima Merrill and her Children:
You are commanded to hold and possess the land and tenements goods and chattels, of the late Benjamin Merrill, hung for high treason till his Majesty’s pleasure shall be known: and all his tax collectors and receivers shall take due notice thereof.
Done at Hillsboro, --- June, 1771.
William Tryon
After his execution the widow remained on the old homestead, a valuable and well-cultivated farm. Miss Susie Turner, a very wealthy and aged lady, told Reverend Henry Sheets that she recalled hearing her aunt, Mary Workman, tell of calling in to visit the widow while on her way to meeting at Jersey Church. Her aunt told her that the widow was blind. Whether the blindness was caused by some natural effect of from excessive grief at the sad and untimely death of her husband was not known. It is said that she never recovered from the shock and that she suffered great mental distress and spent much of her time in walking to pass off the melancholia which clung to her and darkened her days with grief and bitterness. Regardless of all this, we know that she returned to the old homestead and lived there with her children for several years. During this time she remained faithful to her church and on one particular occasion in November 1771, she and the children attended Soelle’s service in the River Settlement. Soelle said, “She cannot forget the fate of her husband.”
It has always been rather hard to determine just where this branch of the Merrill family is connected up with the other branches even though it has always been understood that they were related. Andrew Merrill, son of Captain and Jemima Merrill, had a son, Andrew Jr. This is shown by the tax returns and other official papers in Rowan County, North Carolina. Andrew Jr. married Permelia Tatum, the daughter of Haley Tatum on June 4, 1810. The Merrills lived in the Potts Creek section of Rowan County which is now in Davidson County. The Tatums lived across the north fork of the Yadkin River which is now part of Davie County.
Andrew and Permelia made their home in Buncombe County. In 1821 they sold some land in Rowan County to Permelia’s brother. The land deed states that Andrew and Permelia still lived in Buncombe County. Some time later they move to Madison County, Alabama, by way of Dahlonega, Georgia. It is thought they stayed several years in Georgia. We have been unable to get the complete records but it is thought they were living in or near Huntsville, Alabama, several years before the Civil War. It is peculiar that the spelled their last name Murrell. All the records in Alabama were signed as Andrew J. and Permelia Murrell.
So far we have been unable to find their birth dates. It is said that Andrew was born about 1780. He died sometime prior to “December 21, 1882, for on Tuesday of last week his widow married A.P. Hoxter of Decatur. Hoxter went over to Huntsville, where the Merrills lived and shortly after landing in the love-providing atmosphere in Huntsville, his longing blinkers fell for the first time on the form of Mrs. Permelia Merrill, the ripe relict of the late Andy Merrill. Within 6 hours they were married.” Hoxter was about seventy-five at this time.
Andrew and Permelia Merrill had seven children, three boys and four girls.
Their eldest son, Haley, was a Baptist Minister. He married in Little Rock, Arkansas and had a family. He was robbed and killed by a negro slave shortly after the Civil War.
Benjamin Franklin was a lawyer. As far as we know, he never married.
Ransom P. was born June 26, 1812, married Anne Metcalf and lived in Madison County, North Carolina. They had thirteen children. Two of the children, Sofina Phillips, age eighty-six and Parthenia Victoria McClain are still living. Both of them have given much information about their grandparents.
Ransom P. Merrill was Sheriff of Madison County. He was killed on May 13, 1861, while on duty. He was a man worthy of his position and in general esteem of his fellow citizens. (See article in Madison County Heritage, Volume 1)
Ransom and Anne’s son, Marion H. Merrill m. Jane West. They had four children.
Marion and Anne’s daughter, Laura Coretta Merrill m. Tilman Anderson Silver. They had 13 children. Anderson and Laura are survived by the below listed grandchildren.
James D. “John” Silver and Johnnie Marie Silver Rice.
Jack, Bill, Laura Thomas and Lillian Joan Thomas Shelton.
Clarence A. “Till” Tillery
Jessie and Dan Fisher.
Billy Jack Silver
In making this study of the Merrill family certain characteristics have been noted throughout the various generations. Perhaps the two most prominent are the religious trends and the spirit of adventure. Since the earliest times these people have been Protestants. They left France during the Huguenot Revolution. They left England perhaps on account of religious troubles as well as for adventure. Shortly after arriving in America they became associated with the Baptists. The family is still mostly Baptist. It has furnished preachers, deacons and worthy lay workers.
The members of this group have leaned more to farming and the trades than to the professions. The most of them have been good livers though few have been wealthy.
It is a rare occurrence for any member of this clan to be in court. They have been law abiding, co-operative and good citizens.
We should not gloat over the good traits and deeds of our ancestors, but should take these as stepping stones to a better, more educated and more progressive family.
Guest opinion by John Dinan in the Delaware
State News
I think that we have read some interesting material recently in Viewpoints and Guest Opinions relating to zoning, planning, code enforcement and other matters concerning one’s right to property and land ownership. The American dream to buy a house on a plot of land may very well be nothing more that a mirage.
It is interesting to note that the courts said, “The Land Patent is the only form of perfect title to land available in the United States.” Wilcox v. Jackson, 13 PET (U.S.) 498 10 L.Ed. 264. Yet not one of us in Delaware has one. I would like one of our legislators to respond to this. When we read about “eminent domain” property takings, rules and regulations dictating what one can do and cannot do with “his” property, one has to wonder. Do we really own our land?
In America today people think they own their land, but unless they have the land patent on the land they don’t own it. Most people today obtain “real estate’ by contract, and then on fulfillment of the contract they transfer control of land by “warrant deed.” The “warranty deed” is merely a “color of title.” Color of title means: “That which is a semblance or appearance of title, but not title in fact or in law.” Howth v. Farrar, C.C.A. Tex., 94 F.2d 654, 658; McCoy v. Lowery, 42 Wash.2d 24, Black’s Law Sixth Ed. The Warranty Deed cannot stand against the land patent.
“A grant of land (land patent) is a public law standing on the statute books of the state, and is notice to every subsequent purchaser under any conflicting sale made afterward.” Wineman v. Gastrell, 54 Fed 819, 2 US App. 581. The land patent is permanent and cannot be changed by the government after its issuance. “Where the United States has parted with title by a patent legally issued, and upon surveys made by itself and approved by the proper department, the title so granted cannot be impaired by any subsequent survey made by the government for its own purposes.” Cage v. Danks, 13 LA.ANN 128.
In the history of this country, no land patent has ever lost an appellate review in the courts. As a matter of fact, in Summa Corp. v. California (466 U.S. 198) the Supreme Court ruled forever that the land patent would always win over any other form of title. In that case the land in question was tidewater land and California’s claim was based on California’s constitutional right to all tidewater lands. The patent stood supreme even against California’s Constitution.
The bottom line is that; “Land protected by Land Patent, can’t lawfully be seized for debt or taxes.” Therefore, no mortgage or tax liability can stand against a land patent. Land cannot be taken for debt or taxes, but real estate can. That now leads to the question, what is real estate?
It’s a document that lies over the land in color of title. It is property only when no real title to the land exists. Banks and corporations like real estate because they can own it without an Act of Congress. They and others can use the fiction of title to seize land under the color of law. It happens all the time. They’ve taken their colors of title into courts for so long that the people (under three generations of deception and ignorance) simply allow them to go ahead. We had forgotten about land patents. No real estate school in the country even teaches about them. For that cause, when you go into court today with a real property title case, (a land patent case) chances are that any judge and any attorneys involved won’t know what a land patent is. Lawyers are all ignorant of it. The first court you run into that understands the power of a land patent may be a U.S. Circuit Court of Appeals, and in the history of this nation there has never been an appellate where a properly set land patent has ever lost there.
If you ever have the occasion to have to defend your right to your land in court, and someone else presents a proof of land patent on your land, you’ll lose your land. If you haven’t brought up your land patent in your name, you may be abandoning your right to your land and any owner with a lawful right to the land patent could bring the land patent up and evict you off the land you thought was yours, and you’ll have to leave. That is how powerful and important a land patent is.
It would benefit you to know how a land patent works. Some treaty originally acquired the land within the United State of America. Your land patent secures the rights of the treaty upon which the land was originally acquired within the territories of the United States from the treaty to the individual person named on the patent.
The patent specifically grants the described to the party named on the patent and to their heirs and their assigns forever.
The party on the patent then passes the inheritance, grants or assigns the patented lands to someone else, which assignee is now named on the patent by that assignment. The documents that demonstrate such an assignment are often called. “Deeds.”
Because the granter cannot compel you to accept the assignment, it is necessary for you to take some action to signify your acceptance of the assignment. For this reason we use the “Declaration of Land Patent.”
Once you have accepted the proper assignment of the land patent and you bring it forward by your authoritative declaration, you are named on the physical land patent where it says, “and to his heir and assigns forever.”
It doesn’t matter how many times the land is reassigned. The patent by its own creation lasts “forever” and it belongs to the named party “and to their heirs and assigns forever.”
So your lands come to you from the treaty through your land patent. This is critical. The land patent secures the treaty to you. The Court is bound by the supremacy clause of the Constitution to uphold the treaty making your patent a statutory limitation throughout the land. Wineman v. Gastrell 54 FED 819, 2 U.S. App. 581.
EDITOR’S NOTE: John Dinan is a native of New York City and a graduate
of New York University and the University of Pennsylvania. He is a statistical analyst for a major
banking conglomerate based in Delaware.
He resides in Middletown and can be reached at [email protected].
I recently received an e-mail from Jack Silver asking about an event in the Silver family from years ago. After doing a little research, I finally found the event in the writings of Monroe Thomas. This excerpt was taken from a letter Monroe wrote to James Hutchins of Windom. The letter was 26 pages and Monroe had spent over 5 months writing it. It was addressed to James Hutchins, Windom, NC. Dated: July to November, 1951.
“The fourth and final story that I will tell was about Jacob’s two sons, John and Marvel Alexander. At the time of the story these two brothers were young unmarried men, at home together, and they loved one another with a great love, a love so great that they were inseparable so that whenever one was there the other was also. John was a Christian and his brother was unconverted, and this was their only difference, yet it did not divide them.
“In the summer of the 1839 an epidemic of typhoid fever struck the community and carried off many of its members, John and Marvel Alexander were both stricken as well as their brother Milton and their grandfather George. They were all stricken in a single night. The window to their upstairs bedroom stuck one evening and wouldn’t open. That same night, they all got sick. They laid it to the bad air in the room. Milton and Grandfather George soon died and were buried on the top of the hill above the house where the ashes of Charles reposed. But John and Marvel, after weeks of suffering finally weathered the crisis and started getting better. John improved rapidly and was soon up and out again, but Marvel improved more slowly. The fever had settled in his side, leaving a great cake in it, and soon his side started swelling and he had to take his bed again.
“John had to go to the fields alone now, and he went with a heaviness of heart, for Marvel continued to get worse and worse. His condition was rapidly becoming critical. On a day when John was hoeing in the field at the foot of which now stands the crusher of the feldspar mill of the Carolina Mill Company but what was then called, ‘the big peach orchard,’ a messenger hurried into the field and told him to go quickly and tell his aunt Nancy, and to make haste and return – that his brother was dying.”
“John went. His aunt was his father’s sister, wife of Tom Robinson. She lived on the other side of the river, near the original Robinson settlement in the part of the community that is now called Double Island. The canoe crossing was only a short distance below the field but John didn’t take time to go down to it. He went down and waded the river then returned the way he had gone. And as he went and as he returned, he fell onto his knees and prayed in a loud voice. The neighbors in their fields along the way saw him and heard him. And each time he prayed his words were the same, that his brother might recover to become a Christian and that he be allowed to die in his place.”
“When John got home, the family and neighbors were fast gathering in. He told them about his prayer, that it had been answered, and his face shown with a strange light. But no one paid any attention to him. Marvel was already in the throes of death and lamentation was already being made for him. But presently he came out of his struggle and regained consciousness. He then seemed momentarily to rest easier. Then a strange thing began to happen. Marvel started getting better and at the same time John started getting sick; and their sickness was the same. As if it were coming out of one and going into the other. All that afternoon the sick brother recovered rapidly and at the same degree that he got better, John got worse. In the presence of the Supernatural, the family felt powerless to act, and an awed but hallowed stillness fell upon the home as family and neighbors tiptoed from room to room and talked in hushed voices. Though none knew it then but the two brothers and the weeping sweetheart, John had in his pocket his license to wed, but in the awfulness of that hour there was no thought of marrying or giving in marriage. The next morning the brother was able to sit up, but John took to his bed. And on the morning of the next day Marvel arose, seemingly a well man but John lay at the point of death.”
“Nevertheless, John arose that morning and bathed and dressed himself in his best clothes as if he were going on a long journey. Then going out into the yard, he bade the sun and moon and the stars farewell, then turning, bade the earth and all upon it a long farewell. Then he went back into the house and bade the wonder-stricken family and neighbors farewell. Then, without saying more, he went to his bed and lay down. Having crossed his hands upon his breast, he closed his eyes and with one last breath was gone.”
“The next day, the awed and sorrowing family and neighbors carried him up to the top of the hill and laid him down. Two years later, they his brother beside him — a Christian. They sleep beneath unmarked stones yet when we gather for our annual decoration, we never fail to put a flower on their graves.”
Citizen-Times
Asheville, NC
29 September 2006
Marion - Rachel Buchanan Biddix, of Marion, passed away on Thursday, Sept. 28, 2006, at Mission Hospitals, St. Joseph Campus.
She was born in Yancey County to the late Rev. Ade Buchanan and the late Edith Presnell Buchanan. Mrs. Biddix was a member of Grand View Baptist Church and was active in the SAVE Program, in which she passionately spoke to school children about the dangers of tobacco.
Surviving are her husband, James Biddix, of the home; son, Chris Biddix and wife, Maggie, of Marion; three sisters, Jean Beaver and husband, Hersel, of Marion, and Madge Robinson, and Virginia Davis and husband, Bill, all of Burnsville; granddaughter, Madison Biddix; and a number of nieces and nephews.
The funeral service will be held at 4 p.m. Saturday in McCall Memorial Chapel at Kirksey Funeral Home, Marion with the Rev. Charles Dicks and Brandon Walker officiating.
Interment will follow at Chapel Hill Church Cemetery.
The family will receive friends one hour prior to the service at the funeral home.
In lieu of flowers, memorials may be made to American Cancer Society, Asheville Office, 120 Executive Park, Building 1, Asheville, NC 28801.
Words of comfort may be shared with the family at www.kirkseyfuneralhome.com/, or www.mem.com.
(George Silver Sr. > George Silver Jr. > Rev. Jacob Silver > David Ralph Silver > Elisha P. “Lish” Silver > Florence Silver m. Homer Buchanan > Rev. Avery “Ade” Buchanan > Rachel Buchanan m. James Biddix)
Citizen-Times
Asheville, NC
02 October 2006
Marion - Mary Ruth Lane Silver, 77, of Old Fort, died Saturday, Sept. 30, 2006.
The funeral service will be held at 2 p.m. Wednesday at Old Fort Wesleyan.
The family will receive friends from 6 to 8 p.m. Tuesday at Kirksey Funeral Home Chapel in Old Fort.
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