Rhode Island Historical Society.

Rhode Island Historical Society collections (Volume 11) online

. (page 1 of 30)
Online LibraryRhode Island Historical SocietyRhode Island Historical Society collections (Volume 11) → online text (page 1 of 30)
Font size
QR-code for this ebook


Book -iv^ 7


Rhode Island

Historical Society


January, 1930

No. 1

Head of in cspontoon, a sort of halhcrd or pike, which was carifcd Vj,'
hv the c-ommissioncd officers of the Rhode Island militia in the eigh- - /

teenth centur\-. hi (ke Society's museinn. '^

Issued Quarterly

68 Waterman Street, Providence. Rhode Island



Head of an Espontoon Cover

Foreclosure of Mortgage by Suit of Trespass and

by Oscar F. Stetson 1

The Samuel Sewall School Land

by William Davis Miller .... 4

A German Gardener at Newport in 1754 . . 10

Mielatz' Rhode Island Pictures . . . . 13

Notes 15

The Gaspee Commission Box 19

Captain Paine of Cajacet 19






January, 1930

No. 1

Claude R. Branch, President
Howard W. Preston, Secretary

Gilbert A. Harrington, Treasurer
Howard M. Chapin, Librarian

Xhe S()ciet\' assumes no respnnsihilitx tor the ^tatel^eIlts or the
opinions of contributors.

Foreclosure of Mortrag^e by Suit of
Trespass and Ejectment

By (^scAR ['\ Stetson

In examining records of the Superior and Supreme
Ccjurts of Bristol County recently, covering the period
from 1 740 on, we disco\'ered a large number of suits for
Trespass and Ejectment where the sum named in the ad
damnum seemed unusually large, so large, in fact, that is
raised the question as to how such an amount could be in-
volved in a suit of this nature at that period of the his-
tory of the state, especially as the description of the land
in question would not seem to warrant the amount of
money named. Often a house lot of a quarter of an acre
with a dwelling on it would carry an aci damnum of four
or five thousand dollars.

In an examination of the papers filed with the case we
found the explanation. There, filed in e\'idence, was a
warrantv deed with the fi)llowinu condition written at the


bottom of the instrument: "The condition of this convey-
ance is a note of hand given by the grantor to the grantee
which, when and if paid, renders this conveyance null and
void and of no effect."

Thus the suit for Trespass and Ejectment was the popu-
lar way of that time for foreclosing a mortgage. It will be
noted that there was no specification in the warranty deed
or mortgage deed as it really was, as to foreclosure; no
time noted for the payment of the "note of hand": no
default clause or period of default when foreclosure action
could be commenced; no advertising required; no sale de-
manded, either public or private, on the premises or else-
where; in fact, no one of the requirements that make fore-
closure of a mortgage legal to pass title today.

In other words, Hezekiah Usher mortgaged his prop-
erty to William Richardson, thus conveving to Richard-
son good title by a warranty deed with a condition of re-
demption so worded in its breadth that Richardson could
seize the premises at any time that he pleased, depending
only on the time named in the "note of hand." And if
the "note of Hand" was a demand note, the mortgage,,- was
entirely at the niercy of the mortgagee, the n^iortgagee
having perfect right to take the premises mortgaged, at
his pleasure. At that time, whenever it was, that the mort-
gagee concluded that he wished to have the actual pos-
session of the premises for which he held a warranty deed,
therefore he came into Court and recited that he had a
warranty deed of the property in question, and produced
the deed in evidence, and stated that the conditions of the
deed had not been fulfilled by the mortgagor, and in con-
sequence the mortgagor was a trespasser on his, the mort-
gagee's, premises and he wanted him ejected. The mort-
gagor, not having paid his note, and being either unable or
unwilling to do so at the time, had no answer, the evidence
of the deed coupled with the lack of evidence of payment
of the "note of hand" being conclusive proof against him.
Therefore there was no reason for his appearance in Court


and he was adjudged in default and the Sheriff was di-
rected to pn)ceed to eject him from the premises and de-
liver the pn)pert\- to the mortgagee who already held a
proper deed for it. The average cost of this proceeding
appears to ha\e been about $-(-.85.

The following is an abstract of an actual case taken from
the Bristol record:

Bristol Januar\- Term 1767.
William Richardson of Newport


Hezekiah Lusher of Bristol
Action of Trespass and Kjectment.

Recites a certain lot of land in Bristol containing by estmia-
tion 3/4 acre with a dwelling house and other buildmgs
thereon standing and bcmncied:
westerly on Hope Street
northerly on King Street
easterly on land of John Howland

southerly partly on land of John Waldron, now of Bill-
ings Throop, and partly on land of Peleg Barker.
Ad damnum £120.
Defendant suffered default.
Judgment for the Plaintiff" to recover the premises.

In the papers hied with the case is the original deed
with the "note of hand" condition making it a mortgage
deed, from Hezekiah Usher to William Richardson of
New^port for £1550 old tenor money (in the margin is
WTitten "£66-8s-l>^d lawful money"). This deed is re-
corded in Bristol Land Evidences, book 4 at page 96.

It will be noted that all this action has taken place in
the C(jurt and that change of ownership has occurred, or
perhaps we should say change of possession has occurred,
without anv necessary record on the Tand E\-idences. The
title examiner is faced with the fact that a mortgagee is
deeding out certain premises as having good title without
an\- Land Evidence record of either foreclosure of his


mortgage or a deed of sale to him by the mortgagor who
was the last record owner. This has led many an examiner
to conclude that there must have been an unrecorded deed
of some form. Much anxiety has arisen over this cloud in
title, and much time and money has been spent in hunting
up inortgagors heirs and securing proper releases.

We examined carefully the Court records fron^ 1740 to
1903 and found upwards of two hundred fifty of these
foreclosures in Bristol County coming down as late as the
middle of the eighteen hundreds. It is interesting to note
that in consulting a number of practicing attorneys in the
state of all ages, not one knew that such a practice ever
existed in Rhode Island.

The Samuel Sewall School Land and the
Kingston Academy

By William Davis Miller

On the fourth day of February, 1695' Samuel Sewall
of Boston and Hannah, his wife, daughter of John Hull,
the mint master and one of the original Pettaquamscutt
Purchasers, "for and in consideration of the special trust
and confidence that they have and repose in . . . John Wal-
ley . . . and for Love, Kindness and Goodwill which they
bear to the Inhibitants of the Town of Pettaquamscutt, in
the Narragansett Country, otherwise called King's Prov-
ince, as well English as Indians and their posterity . . . and
towards the encouragement of Literature and good Edu-
cation and the maintenance of a Learned, Sober and Or-
thodox School Master in the said Town . . ." gave, under
trusteeship of John Walley, five hundred acres of land,
being the western portion of Sewall's lot numbered fcjur in

'North Ki/it^itrKu/ Laud Evideiire, Book 2, p. 167.


the north western part of the Pettaquumscutt Purchase,
the eastern portion of which Sewall deeded to Harvard
College, a year hiter, and from the benefits of which the
Sewall Scholarships are still awarded.

The revenue from the School lands was to be collected
by Walley from which Sewall was to be paid sixpence and
the remai'ncier to be employed in "procuring, settling, sup-
porting and n-iaintaining" the beforementioned much-
qualified school master who was to teach "the children
and youths of the . . . Town of Pettaquamscutt, as well Eng-
lish there settled, or to be settled, as Indians, the Aborig-
inal Natives and Proprietors of the Place, to read and
write the English Language and the Rules of Gram-
mar " They then provided that the choice of the school

master and the site of the school rest in Samuel Sewall and
his wife, during their lives, and after their death, in the
Minister of the Third Church in the Town of Boston
and the Town Treasurer for that Town.

judge Sewall died January 1, 1729-30, anci, his wife
Hanna'h having predeceased him, there is no evidence that
prior to his death he had exercised the right in the choice
of a school master or in the site for the school building.
The duties, therefore, fell upon the Minister of the Third
Church and the Town Treasurer for Boston.

Major John Walley, in whom the trust rested, had also
died before Judge Sewall. It would appear that his son
and executor, John Walley, continued the trust but after
Judge SewalP's death, he allowed, either because of dis-
interest on his part or because of the lack of industry of the
tenant or tenants, the lands to fall into a deplorable state
of neglect. As a result the Town of North Kingstown in
1732^ appointed William Spencer and Nicholas Gardner
to view the land and report its condition. The report,
dated No\ ember 27, 1732, states that the land was leased
in 1718 to Benoni Sweet of North Kingstown, for fourteen

-'Copy in Potter Papers.


years, who evidentJy was far from a good tenant for the
Spencer and Gardner report stated, "We find on Sd. Land
a Small poor Orchard with Eighty-Eight Small Aple
Trees and A very poor fence about them, and down to the
Ground m Several places, and in Said Orchard a Small
Stone Chm-iny but no house on Sd. Land 5 and to the
Cleanng of Sd. Land we find Some that has been plowed
but the brush is got up in Bunches ... we find the Timber
Cutt and gon off Said Land in Spots, and as to fence on
Said farme we finde none of any Vallew . . . ."

It IS not to be wondered at, therefore, that fudge
SewalPs son, Samuel, in 1736 wrote to the Reverend Do'c-
tor Joseph Torrey,' the Congregational Minister at Tower
Hill, saying "My Hon'd Fathers Gift of 500 Acres of Land
for the Promotion of a School I have been much concerned
in my mind about the Settlement of it. I did the last Week
go with Mr. Hammon to Mr. Walley & we find by dis-
coursing with him that he will not meddle with it nor have
anything more to do with it. I told him I would take a
Letter of Attorney from him & act in the Affair. He de-
clined It & said he would assign it over to me if I would
see him satisfied what he had Expended which is Nine or
Ten pounds. I have promised to give him satisfaction. He
with Majr. Walley's Heirs will assign it over to me & my
Heirs — " Having so succeeded in obtaining control of
the land young Sewall leased it to a "Mr. Astin'" for
fourteen years upon consideration that he build a house
and clear four acres every year until fiftv acres of land
be cleared and fenced in. Sewall concludes" with the hope:
"I shall rejoyce to hear that what is done may be to satis-
faction & that it may be in order to make it profitable for
the end assigned."

Sewall did not remain in the Colonies to see his hope
fulfilled for on July 1, 1775, being an ardent Tory, he

^Original in the Potter Papers.


left for iMigland. l-'or this rc:ist)n in 1780 process was
commenced before the Supreme Court to have the School
Lands confiscated as being the property of Samuel Sewall,
a Tory refugee. The process was dismissed the following
year, April 1781, on the ground that the beneficial estate
in the land was in the people of the Pettaquamscutt Pur-
chase.-'' The title of the land ha\ing been assured, on May
30, 1781, Joseph Eckley, Minister of the Third Church
in Boston and Da\'id Jeffries, Treasurer of the Town of
Boston wrote the following resolution:' "Whereas by a
deed from Samuel Sewal Esqr of Boston & Hanah his
wife bearing date 4 February, 1695, for the purpose of
settling, supporting & maintaining a learned, sober & or-
thodox school master in the Town formerly called Pettas-
quamscut, it appears that we the subscribers are author-
ized to appoint a place where the school house may be
built, & it appearing to us that it may be convenient that
it should be near the meeting house, we do hereby appoint
that the School house be erected on the lot of land for-
merly left bv Samuel Sewal & Hannah, his wife, for the
purpose of building a meeting House in the said town of


Joseph Eckley, Minister

Of the Third Church in Boston

David Jeffries, Treas""

of the Town of Boston.

Boston 30 May 1781"

This land, containing from one to one and one half
acre, was deeded^ bv the Sewalls to Nathaniel Niles as.
trustee, on "this Three & Twentieth day of September

^Note bv Elisha R. Potter, Jr.

'■■This resolution is endorsed "From Dr. Torrev." The original from
the Potter Papers.

'Sotah Kingstozcn Land Ez-idence, Book II, pp. 1 S3-1 ^+.


Anno Domini one thousand Seven Hundred and Seven
Annoque Regni Anne Regine Angiia &c Sexto". It is sit-
uated on Tower Hill on the easterly side of the Post Road
and on the southerly side of the road leading down the hill
to the Pettaquamscutt or Narrow River, or as designated
in the original deed as the road "across the Hill Toward
the Ferry." There is but slight trace of the building which
stood there but the old grave yard marks the place. Sewall
referred to the proposed gift in his diary under Septeniber
20, 1 706, a year before the deed.

This small lot of land has, on several occasions, been
confused with large tract of three hundred acres laid out
by the Pettaquamscutt Purchasers in 1668 and which, for
fear of naming a specific denomination, the Purchasers set
down on the plat and records as simply "to the Ministry".
This caution, in fact, provokedexactly what it was intended
to prevent, a long controversy for possession between the
Church of England and the Congregational Church.
However, the Purchasers did accomplish the avoidance of
making a difficult decision when the land was first laid out.
This land was situated several miles to the southwest of
Tower Hill, near Worden's Pond, and the woods upon it
are still known as the "Ministerial Woods". Sewall makes
mention of this land in his Letter Book."

The decision of Kckley and Jeffries was carried out
forthwith, a school house built, and school kept there for
over thirty-eight years. Among the "learned, sober and
orthodox" schoolmasters to recei\'e the appointment were:
Constant Southwick, Increase Hewit, John Hazard, Wil-
liam Nichols, Robert F. Noyes, Benj. Hull and Elisha R.
Potter, Sr.''

The nieagerness of the interest from the endowment is

^Seu-alPs Letter Book, W)]. 11, p. 113. {Massachiaetts Historical
Collections, \'()1. \l.)

"From Judge E. R. Potter's notes and also A Statement oj Facts in
Relation to the Funds oj the Kingston Academy. Providence, 1836.


shown from the terms accepted by Klisha R. Potter to
teach in the \ear 1785. "The Terms which the Subscriber
proposes Teaching a School at the School House on Tower
Hill are as follows: If there are twenty-five scholars
SLibscribVi for the price will be 12 / per Quarter and if less
it will be 1 5 . Wood and whatever will render the School
House coinement to be supply'd by the Employers, and
the subscriber to board himself.

Elisha R. Potter"'"

On the reverse, Potter notes that he commenced to
teach on April 12th, 1785, and from further notes it is
e\-ident that b\- June 7th he had twenty-four scholars.

This school', however, was not the first in the Purchase,
for a short time prior to 1759 a school house was built ni
the village of Little Rest (now Kingston) on Little Rest
Hill. This was built on the land of Robert Potter on the
north side of the main road passing through the village
where the present Post Ofi^ce now stancis. On October 20,
1759, Robert Potter deeded the land, thirty by twenty
feet, to a group of the leading men of the community for
school purposes. The deed states that the school house
then stood on the land. In 1787 we find Elisha Potter
teaching there, after his experience on Tower Hill, with
twenty-three pupils, including the two sons of John Waite,
the silxersmith, and Powel Helme."

As a result of a petition to the General Assembly in
1 752 the court house of King's Count}' had been abandoned
at Tower Hill and a new one built at Little Rest in
1756 Little Rest soon became the leading town in the
Countv, and Tower Hill suffered as a result, many of its
hihabitants remo\'ing to, and building in, the larger village.
It is understandable, therefore, that Joshua Huntington,
the then Minister of the Third Church in Boston, and the

'"This was Elisha R. Potter, Senior. Original in Potter Papers.
''South Kingstozm La>id Ez'hlence, Book 6, p. 110, and notes by
Judge Potter.


Treasurer of that town, Andrew Sigourney, should decide
to transfer the SewaJl School from Tower Hill to Little
Rest. One condition was imposed: that the people of
Little Rest would procure a person to settle in the min-
istry there "and teach the school at the same time."^' It is
evident that a promise to fulfill this condition was made
and kept, for the school was removed to Little Rest in
1819 and a year later the present church built, providing,
thereby, suitable facilities for the person selected to act as
a teacher, both spiritual and temporal.

In 1823 the committee of this school petitioned the
General Assembly for a charter under the name of The
Trustees of the Pettaquamscutt Academy. The charter
was given the May Session, and the Pettaquamscutt Acad-
emy, later to be known as the Kingston Academy, came
into being.

( To be continued. )

A German Cjardcncr at Newport in 175+

Contntnnicaled by Mrs. Lewis A. Waterman

The following nineteenth century translations of the
letters of recommendation of a German gardener, named
Johann Caspar Ohlman are of Rhode Island interest be-
cause Ohlman came to America and settled in Newport
where he married Ruth Hart on September 16, 1766.
The record of this marriage appears in the Newport Vital
Records, but in the printed copies the name is mistran-
scribed Oslman.

From stil] another angle these letters open up the
speculation as to how much this German gardener influ-
enced the developnient of our colonial gardens. Did other

"Judge Potter's Notes.



skilled GcrmiuT gardeners emigrate to New England, and
has any trace of this German influence been found in our
early gardens.

"His Highness and nicest powerful Prince, Frederic Au-
gust, King of Poland, Grand Duke of Lithuania, Reussen,
Preussen, Mazovien, Samogitien, Kyovien, \'olhniien, Pa-
dolien, Padlachien, Lifland, Smolensko, Severien, Scher-
nicovien, Duke of Sachsen, Julich, Cleve and Berg, En-
gern and Westphalen, Arch-marshall and Grand Elector
oi the Hoh- Roman Empire, Landgraf of Thuringen,
Markgraf of Meisseti, also of Upper and Lower Lausnitz,
Burggraf of Magdeburg, Prince -gra\'e of Huneburg, Graf
of the Mark Ravensberg, Hanau and Barbev', Seigneur of

His presently employed Horticulturist.

1, Johann Jeremias Alnger, do let it be known to each
and all, of high or low Estate, especially to the honor-
able and skillful Gentlemen and workmen who practice
the noble art of gardening, and to those whose pleasures
tend in that direction, who may see and read this letter,
that the bearer of this, Johann Caspar Ohlman, the legi-
timate and youngest son of Master Johann Heinrich Ohl-
man, beer-brewe"r of Bautzen, near Leipzig, has, in order
to learn the art of horticulture and garciening, been taken,
according to customs, in our service as apprentice for the
term of three years, from November 1 749 to November

1752. ' ,

He has not only served and passed the three years_ ot
apprenticeship, but during that time has been faithful,
industrious, honest, obedient, pious, and has conducted
himself as becomes a studious apprentice, and he has given
me great satisfaction.

But he has resolved, with the aid of the Lord, to try his
luck elsewhere, to perfect himself in the art he has learned
from me, and has therefore kindly asked me for a testi-


menial of his advancement, which I could not refuse him:
therefore, and for his future welfare, do I declare him, on
this day, clear, free and released.

To all whom this letter may reach, I present my kind
regards, and beg that they give full-credit to this my
testimonium, to wit:

To grant Johann Caspar Ohlman, on account of his
from me acquired art of gardening, and for his good be-
haviour, all encouragement and gracious good will and the
best of testimonials, which favors he will, I hope, thank-
fully repay with faithful and diligent service. I shall
always be ready to answer for him at any occasion to each
and every one, and according to rank.

In witness thereof do I hereby affix to this, the appren-
tice indenture, my hand and seal.

Rendered at the Royal Garden of the Residence, Dres-
den, on the nineteenth of November of the year 1752.

The horticulturist to the noble and right honorable Sir,
Mr. Geo. Bosen, renowned merchant of the world-famed
commercial cit\' of Leipzig.

I, Anton Mathias Hort, do let it be known to each and
all in the land, of whatever station of life they may be,
that the bearer, the honest and art-loving Johann Caspar
Ohlman, gardener, born in Bautzen near Leipzig, has been
in my employment for about seven months, during which
time he has always been faithful and industrious. I should
have been glad to allow him to remain in my service, had
he not, for his welfare and ambition, wished to better ( ze-
vati viciter) himself in the praiseworthy art of horticul-
ture, and to try other and better positions.

In this intention has he applied to me for a proper re-
lease of his services, and given communication of his
departure, and I do, herewith, on account of his good be-
haviour, wish to further his welfare. So, should this
release be shown to any one, whether of high estate or


li)W-bi)rn, especial 1\' anyone addicted to the art of garden-
ing, or whose pleasures lean towards that art, I pray theni
not only to gi\e full credit to this, but to show the for-
nanied Johann Caspar Ohlman all respect and favor, and
to accord him all benefit to be derived through this, my
recommendation, which favors he undoubtedly will thank-
fully and in all honor repay with ready service.

In witness thereof do I hereby affix my hand and seal.

Gi\'en in I.eipizig m the year of our Lord one thousand
se\'en hundred and fifty-three.

(Signed) Anton Matthias Hort."

According to family tradition, Ohlman was employed
as gardener at \'aucluse, the Klams' country estate in
Portsmouth. Of \'aucluse, Thomas R. Hazard ( Shepherd
Tom) in his Recollections of Olden Times (pages 91-92)
said: "Nearly all the multitude of trees and shrubbery
planted were imported by Mr. Elam from Europe," and
added that Mr. Elam's account books "showed an outlay of
about eighty thousand dollars on the building and orna-
mental portion of the estate alone."

The name Ohlnian was spelled originally and in these
manuscripts with an umlaut, but in Rhode Island the name
ex'entuallv became changed to Ail man.

Miclatz' Rhode Island Pictures

The following list of pictures by C. I'". \V. Mielatz,
which relate to Rhode Island, has been compiled by Mr.
G. Rothwell Burgess. An article on Mielatz' work was
published in the Providence Journal of April 24, 1929.

E rcHiNc.s

Along the Docks, Newport Harbor
Near the Nets, Newport
Early Morning, Newport


Trinity Steeple, Newport

Morning after the Storm, Newport

A Little Street in Newport

Newport Harbor, from Brenton Cove

Old Wreck in the Cove, Newport

Fishing Bridge, Newport

Old Boat Shop, Newport

Stranded, near Newport.

Steamboat Dock, Newport

The \'il]age over the Hill, Narragansett

Evening, Silver Spring

The Haunt of the Hern

Across the Fields

The Passing Storm

A Narragansett Road

Winter Night

Narragansett Shore

Winter in Narragansett

Rock of the Unfortunate Hannah
The Miller's Home
Rainy Day, Providence

Online LibraryRhode Island Historical SocietyRhode Island Historical Society collections (Volume 11) → online text (page 1 of 30)