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Introduction to W. Schwartz et al. v. JS Declaration, circa 13 October 1843 [W. Schwartz et al. v. JS] Notice, 14 October 1843 [W. Schwartz et al. v. JS]

Introduction to W. Schwartz et al. v. JS

Page

W. Schwartz, Edward Schwartz Jr., I. Schwartz, Eliza Schwartz, Horatio Schwartz, J. Schwartz, Hiram Schwartz, and Elizabeth Schwartz v. JS
Hancock Co., Illinois, Circuit Court, circa October 1843, not litigated
 
Historical Introduction
In October 1843, the children of Edward Schwartz, by their attorney, , notified JS of their intent to bring a legal action of “trespass and ejectment” against him for a disputed parcel of land in , Illinois. The action in ejectment was a procedure to recover possession of land and claim damages for unlawful withholding of the property. Conflicting titles were common in western , and to ensure a clear title to a property, it was often necessary to purchase multiple claims. The more claims on the property, the more work a purchaser would have to undertake to ensure a clear title. The lawsuit threatened by the descendants of Schwartz related to a particularly complex series of competing claims for a piece of property JS planned to purchase in 1843.
In 1818, Frederick F. Marker obtained a land patent for the southeast quarter of Section 5, Township 6 North, Range 8 West of the Fourth Principal Meridian in from the government as a military bounty for his service in the War of 1812. Marker never relocated to Illinois, however, and in 1839, he and his wife, Mary, sold the property to Erie Rhodes. By 1841, Rhodes took possession of the property and began parceling out the quarter section, selling portions to other individuals.
However, in the twenty-one years between the granting of the patent and its sale to Rhodes, a competing claim for the tract of land had emerged. In 1825, John Sherman sold the property to David Wright. It is unclear how Sherman obtained a title or claim to the property. It is possible that the property had been seized for failure to pay taxes at some point during the intervening years, a common problem for absentee holders of military land patents, who were often unaware of local taxes or the seizure of their land. Wright evidently later claimed that he held his title directly from Marker and that the deed had been recorded. Such a deed, if it ever existed, was not recorded in , while the deed from Sherman to Wright was. These competing claims became further complicated in 1835, when county officials seized the property for Wright’s alleged failure to pay taxes and sold it to Robert R. Williams for $2.69. Williams’s deed included a stipulation that the property was his, “Subject however to all the rights of redemption provided for by Law.” According to law, when the property was sold for taxes, Wright was allowed two years to redeem it “by paying into the county treasury . . . double the amount for which it was sold, together with all subsequent taxes thereon.” If the land was not redeemed, Williams as purchaser became vested with “a perfect title in fee simple.” Despite Williams’s claim to the land, in December 1841, Wright sold the property to Edward Schwartz of Jackson County, Illinois. Like the other claimants, Schwartz never lived on the property; instead he appointed Latter-day Saint Moses Sanders to manage it as his financial agent.
In spring 1843, JS became interested in purchasing the land and began navigating the multiple competing claims of ownership. By mid-April 1843, he began buying out the claims of at least some of the individuals who had purchased their land from Rhodes. Because Rhodes and Williams had both died in fall 1841, JS had to negotiate with the administrators of their estates to fully address their claims. On 19 May, JS signed an agreement with Hugh Rhodes, the administrator of Erie Rhodes’s estate, to purchase the entire quarter section of land. The agreement acknowledged Schwartz’s competing claim to the land and stipulated that after the purchase JS would be “responsible to compromise with said Schwartz so far as his claim extends.” Within days of this agreement, JS began selling portions of the land to various individuals, although he did not yet hold title to it nor had he made any arrangements with Schwartz to settle his claim.
After Schwartz died in September 1843, his brother George Schwartz was appointed administrator of his estate on 3 October 1843. On 14 October, attorney notified JS of the Schwartz family’s intent to bring a suit of trespass and ejectment against him to secure their claim, declaring that they held title to the land and that JS had unlawfully withheld it from them. Although Edward Schwartz’s eight minor children were the named plaintiffs in the case, the threatened suit was presumably brought by George Schwartz on behalf of the children. The action of ejectment required that the plaintiff and defendant produce their competing titles for examination and whoever could prove the best legal title would succeed in the suit.
In response to this threatened suit, JS apparently sought to shore up his claim on the property. On 7 November 1843, , one of JS’s financial clerks, wrote to Solomon Lawrence for information about a “Tax title.” One month earlier the executor of Williams’s estate had sold the tax title for the disputed property to Lawrence, and Clayton’s letter presumably asked about the Schwartzes’ claim to the property and sought to purchase Lawrence’s claim on the land. In response, Lawrence arranged for , a prominent attorney in , Illinois, and a brother of Robert Williams, to write to JS assuring him that he “need have no apprehension concerning the regularity of the title.” The same day he wrote to JS, Archibald Williams made out a deed from Lawrence, conveying the property to JS. JS accepted the deed and paid Lawrence on 29 November 1843. On 19 January 1844, JS arranged for Clayton to attend a property auction held by the Erie Rhodes estate where Clayton formally purchased Rhodes’s claim to the property. A month later, Clayton transferred the property to JS as trustee for the church. In February 1844, JS also retained attorneys and to handle the suit.
George Schwartz likewise sought to strengthen his brother’s claim to the property. In May 1844, he traveled to to examine the contested property and obtain the title papers held by his brother’s agent, Moses Sanders. In July 1844, he wrote to the secretary of state of asking for copies of documents related to the property in Hancock County. He also wrote to the state auditor about Wright’s alleged failure to pay taxes. In December, he finished paying Edward Schwartz’s debt to Wright for the property. He also obtained a legal certificate from the auditor testifying that Wright had paid taxes on the disputed property. By May 1845, after consulting with multiple attorneys, Schwartz was finally ready to proceed with his long-threatened suit. By that time, JS was dead, so instead, Schwartz initiated four separate suits of trespass and ejectment against subsequent church trustees and as well as three individuals who had purchased portions of the property from JS. These four cases were continued until the October 1846 term of the Hancock County Circuit Court, and a jury supported the Schwartz claim to the property in at least one of the cases. The defense objected to the verdict and requested a new trial and a change of venue. All of the trials were then granted a change of venue to Rock Island County, Illinois. The details of the proceedings in Rock Island County are unknown; however, from the financial records of the Schwartz estate, it appears that the case was heard in 1847 and that the court ultimately upheld the Schwartz family claim.
 
Calendar of Documents
This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.
 

1843 (2)

October (2)

Ca. 13 October 1843

Jason Sherman on behalf of William Schwartz and Others, Declaration, Hancock Co., IL

  • Ca. 13 Oct. 1843. Not extant.
  • 14 Oct. 1843; Newel K. Whitney, Papers, BYU; handwriting presumably of Jason Sherman; docket in handwriting presumably of Jason Sherman.
14 October 1843

Jason Sherman on behalf of William Schwartz and Others, Notice, to JS, Hancock Co., IL

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Editorial Title
Introduction to W. Schwartz et al. v. JS
ID #
19766
Total Pages
1
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    Footnotes

    1. [1]

      Declaration, ca. 13 Oct. 1843 [W. Schwartz et al. v. JS]; Jackson Co., IL, Probate Records, Will Record, June 1843–Dec. 1864, pp. 141–143, 14 May 1845, microfilm 968,931, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    2. [2]

      “Ejectment,” in Bouvier, Law Dictionary, 1:503; “Ejectment,” in Saunders, Law of Pleading and Evidence, 1:515–516.

      Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other Systems of Foreign Law. 2nd ed. 2 vols. Philadelphia: T. and J. W. Johnson, 1843.

      Saunders, John Simcoe. The Law of Pleading and Evidence in Civil Actions, Arranged Alphabetically With Practical Forms: And the Pleadings and Evidence to Support Them. 2nd American ed. 2 vols. Philadelphia: R. H. Small, 1831.

    3. [3]

      In an 1845 letter to an individual who had bought land from JS, William Clayton explained, “It is very frequently the case that in order to make a title perfect it is necessary to procure conveyances from the patent holders and tax title holders, both.” (William Clayton, Nauvoo, IL, 7 Mar. 1845, Copybook, pp. 4–5, Brigham Young Office Files, CHL.)

      Brigham Young Office Files, 1832–1878. CHL. CR 1234 1.

    4. [4]

      Land patents, Hancock Co., IL, no. 14020, General Land Office Records, Bureau of Land Management, U.S. Department of the Interior; Land Patent, Frederick Marker, 17 Feb. 1818, Lands in Illinois to Soldiers of Late War, 310.

      General Land Office Records, Bureau of Land Management, U.S. Department of the Interior. www.glorecords.blm.gov.

      Lands in Illinois to soldiers of late war: Letter from the Commissioner of General Land Office, transmitting the information required by a resolution of the House of Representatives of the 6th of April last, respecting patents for lands in the military bounty land district in the state of Illinois, issued to soldiers of the late war, &c. Washington: Government Printing Office, 1840.

    5. [5]

      Hancock Co., IL, Probate Records, 1831–1912, Wills and Testaments, 1833–1843, p. 337, microfilm 959,566, item 1; Hancock Co., IL, Bonds and Mortgages, 1840–1904, vol. 1, pp. 363–365, 4 March 1841, microfilm 954,776; Hancock Co., IL, Probate Records, 1831–1912, Wills and Testaments, 1833–1843, pp. 302–303, microfilm 959,566, item 1, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    6. [6]

      When Wright purchased the property on 15 June 1825, the deed erroneously identified it as located in Pike County. The land became part of the newly formed Hancock County in January 1825. (John Sherman to David Wright, Deed, Hancock Co., IL, 15 June 1825, Hancock Co., IL, Deed Records, 1817–1917, vol. 5, pp. 277–278, microfilm 954,191, U.S. and Canada Record Collection, FHL; An Act Forming New Counties out of the Counties of Pike and Fulton, and the Attached Parts Thereof [13 Jan. 1825], Laws Passed by the Fourth General Assembly, p. 93, sec. 3.)

      U.S. and Canada Record Collection. FHL.

      Laws Passed by the Fourth General Assembly of the State of Illinois, at Their First Session, Commenced at Vandalia, November 15, 1824, and Ended January 15, 1825. Vandalia, IL: Robert Blackwell & Co., 1825.

    7. [7]

      Carlson, Illinois Military Tract, 40–64; Smith, “Illinois Military Tract,” xii–xiii.

      Carlson, Theodore L. The Illinois Military Tract: A Study of Land Occupation, Utilization, and Tenure. Urbana: University of Illinois Press, 1951.

      Smith, Marjorie. “The Illinois Military Tract.” In War of 1812 Bounty Lands in Illinois, xi–xv. Thomson, Illinois: Heritage House, 1977.

    8. [8]

      Hancock Co., IL, Probate Records, 1831–1912, Wills and Testaments, 1833–1843, p. 337, microfilm 959,566, item 1, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    9. [9]

      Wesley Williams to Robert R. Williams, Deed, Hancock Co., IL, 4 Mar. 1835, Hancock Co., IL, Deed Records, 1817–1917, vol. M, pp. 86–87, microfilm 954,600, U.S. and Canada Record Collection, FHL. See An Act to Provide for Raising a Revenue [19 Feb. 1827], Public and General Statute Laws of the State of Illinois, p. 566, sec. 24.

      U.S. and Canada Record Collection. FHL.

      The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

    10. [10]

      An Act to Provide for Raising a Revenue [19 Feb. 1827], Public and General Statute Laws of the State of Illinois, p. 567, sec. 27.

      The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

    11. [11]

      The land did not have to be redeemed if the owner could show that the taxes for which it had been sold had been previously paid or show “that the land was not legally subject to taxation.” (An Act concerning the Public Revenue [27 Feb. 1833], Public and General Statute Laws of the State of Illinois, p. 576, sec. 8.)

      The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

    12. [12]

      David Wright to Edward Schwartz, Deed, Hancock Co., IL, 16 Dec. 1841, Hancock Co., IL, Deed Records, 1817–1917, vol. K, pp. 215–216, microfilm 954,599, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    13. [13]

      Although details are unclear, Schwartz evidently converted to the church sometime before May 1842, when he is recorded paying $120 of tithing. Around that same time, he apparently entertained plans to move to Nauvoo, Illinois, or the surrounding region, and the purchase of this property may have been an initial step for that future move. Financial records submitted to the Jackson County, Illinois, probate court include a May 1842 promissory note from Lyman Wight promising to pay Schwartz $50 in bricks and lumber to help build a house. Later that same year, Schwartz also obtained a promissory note from George P. Dykes for $6 to be paid in labor on the Nauvoo temple. (Inventory, Jackson Co., IL, Probate Estate Case Files, ca. 1834–1916, Probate Estate Case Files #2021–2047, 1903–1910, image 1549, 13 Apr. 1844, microfilm 2,318,129, U.S. and Canada Record Collection, FHL; License for Moses Sanders, 16 May 1840; Book of the Law of the Lord, 119; Promissory Note, Lyman Wight to Edward Schwartz, Jackson Co., IL, Probate Estate Case Files, ca. 1834–1916, Probate Estate Case Files #2021–2047, 1903–1910, image 1692, 14 May 1842; Promissory Note, George P. Dykes to Edward Schwartz, Jackson Co., IL, Probate Estate Case Files, ca. 1834–1916, Probate Estate Case Files #2021–2047, 1903–1910, image 1699, 30 Nov. 1842, microfilm 2,318,129, U.S. and Canada Record Collection, FHL.)

      U.S. and Canada Record Collection. FHL.

    14. [14]

      Trustees Land Book B, 18; Clayton, Journal, 5 May 1843.

      Clayton, William. Journals, 1842–1845. CHL.

    15. [15]

      The inventory of Rhodes’s real estate lodged with the Hancock County Probate Court acknowledged David Wright’s competing claim to the property. (Hancock Co., IL, Probate Records, 1831–1912, Wills and Testaments, 1833–1843, p. 337, microfilm 959,566, item 1, U.S. and Canada Record Collection, FHL; Adams Co., IL, Will Records, 1837–1908, vol. 1, pp. 75–76, 25 Aug. 1841, microfilm 961,242, U.S. and Canada Record Collection, FHL.)

      U.S. and Canada Record Collection. FHL.

    16. [16]

      Agreement with Hugh Rhodes, 19 May 1843.

    17. [17]

      Trustees Land Book B, 18–19, 22; Clayton, Journal, 20 and 23 May 1843.

      Clayton, William. Journals, 1842–1845. CHL.

    18. [18]

      Jackson Co., IL, Probate Records, Will Record, June 1843–Dec. 1864, pp. 20–22, 2–3 Oct. 1843; Jackson Co., IL, Probate Records, Will Record, June 1843–Dec. 1864, pp. 141–143, 14 May 1845, microfilm 968,931, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    19. [19]

      George Schwartz was explicitly named as a party in subsequent attempts by the Schwartz family to secure their property. The eight children named in the declaration are William, Edward Jr., Isabella, Eliza, Horatio, Josiah, Hiram, and Elizabeth. (Declaration, ca. 13 Oct. 1843 [W. Schwartz et al. v. JS]; Notice, 14 Oct. 1843 [W. Schwartz et al. v. JS]; Jason Sherman on behalf of W. Schwartz at al., Declaration, 9 June 1845; Jason Sherman on behalf of W. Schwartz at al., Declaration, 24 June 1845, Newel K. Whitney, Papers, BYU.)

      Whitney, Newel K. Papers, 1825–1906. BYU.

    20. [20]

      “Ejectment,” in Bouvier, Law Dictionary, 1:503; Saunders, Law of Pleading and Evidence, 1:515–516.

      Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other Systems of Foreign Law. 2nd ed. 2 vols. Philadelphia: T. and J. W. Johnson, 1843.

      Saunders, John Simcoe. The Law of Pleading and Evidence in Civil Actions, Arranged Alphabetically With Practical Forms: And the Pleadings and Evidence to Support Them. 2nd American ed. 2 vols. Philadelphia: R. H. Small, 1831.

    21. [21]

      Andrew Johnston to Solomon R. Lawrence, Deed, Hancock Co., IL, 12 Oct. 1843, Hancock Co., IL, Deed Records, 1817–1917, vol. M, p. 87, microfilm 954,600, U.S. and Canada Record Collection, FHL; Clayton, Journal, 7 Nov. 1843; Letter from Archibald Williams, 20 Nov. 1843; Deed from Solomon and Eleanor Lawrence, 20 Nov. 1843.

      U.S. and Canada Record Collection. FHL.

      Clayton, William. Journals, 1842–1845. CHL.

    22. [22]

      Clayton, Journal, 29 Nov. 1843.

      Clayton, William. Journals, 1842–1845. CHL.

    23. [23]

      Clayton, Journal, 19 Feb. 1844; William Clayton to Hugh Rhodes, Bond, Hancock Co., IL, Bonds and Mortgages, 1840–1904, vol. 1, p. 452, 19 Feb. 1844, microfilm 954,776; Hancock Co., IL, 20 Jan. 1844, Hancock Co., IL, Deed Records, 1817–1917, vol. M, pp. 370–372, microfilm 954,600, U.S. and Canada Record Collection, FHL.

      Clayton, William. Journals, 1842–1845. CHL.

      U.S. and Canada Record Collection. FHL.

    24. [24]

      Deed from William and Ruth Moon Clayton, 21 Feb. 1844.

    25. [25]

      Statement of Account from Bachman & Skinner, ca. 27 Nov. 1844–A.

    26. [26]

      Account, Jackson Co., IL, Probate Estate Case Files, ca. 1834–1916, Probate Estate Case Files #2021–2047, 1903–1910, p. 1, image 1611, 13 Feb. 1846, microfilm 2,318,129, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    27. [27]

      Jason Sherman on behalf of W. Schwartz at al., Declaration, 9 June 1845; Jason Sherman on behalf of W. Schwartz at al., Declaration, 24 June 1845, Newel K. Whitney, Papers, BYU; Hancock Co., IL, Circuit Court Records, vol. D, pp. 305, 309, microfilm 947,496, U.S. and Canada Record Collection, FHL. Although there is no evidence that Joseph Dodd, the defendant of one of the four lawsuits, had purchased property from JS, he may have been one of the unnamed individuals who contracted with JS for property in mid-April 1843. (Trustees Land Book B, 18–19, 22.)

      Whitney, Newel K. Papers, 1825–1906. BYU.

      U.S. and Canada Record Collection. FHL.

    28. [28]

      Hancock Co., IL, Circuit Court Records, vol. D, pp. 500–501, microfilm 947,496, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

    29. [29]

      Account, Jackson Co., IL, Probate Estate Case Files, ca. 1834–1916, Probate Estate Case Files #2021–2047, 1903–1910, image 1622, 18 Apr. 1849; Account, Jackson Co., IL, Probate Estate Case Files, ca. 1834–1916, Probate Estate Case Files #2021–2047, 1903–1910, image 1626, 13 Sept. 1853, microfilm 2318129, U.S. and Canada Record Collection, FHL.

      U.S. and Canada Record Collection. FHL.

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