An American Family History

General Court, October Term 1804

Ejectment [action of evicting a tenant] for a tract of land called Cheney's Hazard, lying in Anne Arundel County. The defendant [the person against whom the suit is brought] took defence on warrant, and plots were returned. General issue pleaded and issue joined.

1. The plaintiff, by his counsel, read in evidence to the jury a patent for the tract of land called Cheney's Hazard, being the land in the declaration mentioned, granted to Richard Cheney on the 30th of May, 1663, for 100 acres more or less.

He then offered evidence to the jury to prove that the lessor of the plaintiff was the heir at law of the patentee.

The defendant then offered in evidence to the jury, a copy of the Rent Roll legally authenticated, viz:

100 acres, Cheney's Hazard, surveyed 24 Dec. 1661, for Richard Cheney, on the south side of South River. Poss. John Derbin.

Alienations [The transfer of title to real property]

100. Patrick Symson from Samuel Burgess, and uxor. 17th February, 1719.
100. Richard Hill from Patrick Symson and Eleanor, uxor. 3rd November, 1724.
100. David Maccleflsh, from Richard Hill, 4th April, 1726.

He also offered in evidence the will of John Durbin, dated the 9th October, 1715, whereby he devised the said land called Cheney's Hazard, to his wife Elizabeth Durbin,

to be entailed upon the said Elizabeth, and her heirs, neither to be sold nor mortgaged if the said Elizabeth has heirs by her own body, and the said heirs live to the years of twenty-one, to enjoy the said land, otherwise the son of Dorothy Callingsworth to enjoy the said land for him and his heirs.

He also offered in evidence a deed from Samuel Burgess, and Elizabeth his wife, to Patrick Sympson, dated the 17th of February, 1719, for the said tract of land called Cheney's Hazard, in which will the devise from John Durbin to the said Elizabeth, who had intermarried with Burgess, is recited. The acknowledgment of said deed by Elizabeth, and her examination by a Justice of the Provincial Court who took the same, is that the said

Elizabeth, the wife of the said Samuel, who being by me secretly examined out of the hearing of her said husband, declared that she acknowledged within land and premises to be the right of the within named Patrick Sympson, his heirs and assigns for ever, free from any threats or fears of her said husband's displeasure.

The defendant also read in evidence a deed from Patrick Sympson, and Eleanor his wife, to Richard Hill, dated the 23rd of November, 1724, for the said land.

He then produced in Court the original land record book of Anne Arundel County, under the custody of the clerk of Anne Arundel County Court, and by him brought into Court, in which book was the record of a deed purporting to be a deed from Richard Hill to David Mackleflsh, dated the 4th of April, 1726. . .

Martin, (Attorney-General,) for the plaintiff, objected to this deed. . .

Shaaff, for the defendant, contended, that land is a good consideration. . .

The Court are therefore of opinion, that the said enrolment is no evidence, as the said deed could not operate as a deed of bargain and sale, there not being any money consideration expressed therein. The defendant excepted.

2. The defendant then produced in Court the original record book brought into Court by the register of wills for Anne Arundel County, in which book was recorded a paper, purporting to be the will of David Macklefish, dated the 6th of June, 1737, whereby he devised the said land called Cheney's Hazard, to his wife Martha, for life, with remainder in fee to his son John, which said will appeared to have been signed, &c. in the presence of two witnesses.

And he offered to read from the said book. . .

The Court are of opinion that the record is not legal and admissible evidence to prove that David Mackleflsh claimed the land in question, and was in possession thereof, claiming title to the same, the said will not being attested by three witnesses. The defendant excepted.

3. The plaintiff, further to prove the issue on his part, after having read in evidence to the jury the grant for the tract of land called Cheney's Hazard, in the declaration mentioned, issued to Richard Cheney on the 30th of May, 1663, as before stated,

gave evidence to the jury that said patentee died sometime in or about the year 1704, leaving Richard Cheney, his eldest son and heir at law, who was born on the 8th of March, 1682-3, and who on the 10th of December, 1707, married a certain Rachel Nicholson;

that some time in or about the year 1709, they had a daughter of the name of Elizabeth, who in the year 1725, and before she was 21 years of age married a certain Greenbury Cheney, by whom she had the said Zachariah, the lessor of the plaintiff, who moved from the State of Maryland upwards of forty-two years past, to Juniata in the State of Pennsylvania, and where he hath since resided.

He further offered evidence, that the said Richard, the son of the patentee, was in his life-time in possession of said land, and lived on it, and that he died in or about the year 1713 [sic-should be 1750].

He further gave evidence, that Elizabeth, the mother of the lessor of the plaintiff, died about the year 1751 [sic], in the life-time of her husband. Greenbury [1713-1760] and that he died about fourteen years past. He also proved the lease, entry and ouster, as laid in the declaration.

The defendant, in support of the issue on his part, produced in evidence the entries on the original rent rolls, which are before inserted; and read in evidence the last will and testament of the said John Durbin, or Durden. . .

Whereupon the defendant prayed the opinion of the Court, and their direction to the jury, that if they are of opinion from the evidence aforesaid, that the facts aforesaid stated by the defendant are true, then, although they are also of opinion that the several facts stated by the plaintiff are also true, that they may and ought to presume that the said Richard Cheney, the patentee, or Richard Cheney his son and heir at law, in due form of law conveyed the same land in the declaration mentioned to the said John Durbin, or Durden.

Chase, Ch. J. The Court are of opinion, that if the jury believe that Elizabeth Durbin, the devisee in the will of John Durbin, intermarried with Samuel Burgess, then there is a clear deduction of title, possession, &c. to presume a deed to John Durbin from the patentee, or from his son Richard; and the Court gave the direction to the jury as prayed by the defendant. The plaintiff excepted.

Verdict and judgment for the defendant.