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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

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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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