[Woods v. Farmare.] session; I was not present. James raised corn and potatoes on it; planted cherry trees and peach trees. Not a quarter of an acre cleared, or much more, when James got it. Cross-examined.-My brother James will be fifty years old in February. I did not see money paid to Fitzimmons; the 60 dollars was on the land I am certain; the 40 dollars also; saw no money pass between them. James assumed to pay Fitzimmons; heard Fitzimmons say he had paid it. Saw no money paid on the 60 dollar order; I saw money in the last payment; James was present; the money was on the table; saw my father lift it; heard him repeat it there, and the day after, that that was the fulfilment of the payment on the land; this was late in the fall of 1817. I did not see receipt pass at any time; can not tell why a deed was not given. It may not have been in full. In 1825 James moved off the land to Alleghenytown, to a house of William Robinson, near where Irwin's brewery stands. Mrs Bennet went into possession in the spring of 1826. The cabin was built in 1814. I bought a piece too, by parol agreement, from my father. James followed boating in 1815, 1816, and 1817, and occasionally afterwards. His wife and children lived in the house. It was between November 1825 and March 1826, he moved to Robinson's house. Joseph Woods, sworn.-I am brother of plaintiff; know the land; think James went into possession in 1815; my father died September 2, 1819; my sister had lived on it before James got it; she had built the house. The first knowledge I had of the lot being sold, was in summer of 1815, by Tobias Woods, a brother of my father. He had some grant of the lot, and had made some repairs to the house. During the summer I heard my uncle Tobias exclaim against my father for selling the land to James. My father told me he had sold it; he did not say in my presence for any particular sum; from that on I always heard it go in the name of James; do not know whether it was before or after James went into possession, that the bargain was made. Think it was in 1817; do not recollect the month or the day. I saw James pay my father about 30 dollars. He turned round and said to my mother and others present, that that was the last payment for the ground James lived on. Never saw any other money paid. One time I was clearing, my father showed me where James's line would run across his land; a part of two tiers of lots. Heard my father speak of James having paid a judgment in favour of Michael Brenner, on esquire Sample's docket, and another claim to William B. Foster. I knew James to be in the house from 1815 to fall of 1825, when I went to Cincinnati. It seems to me James Pagan was present when the 30 dollars was paid: he lived near, and often worked for my father. I came back from Cincinnati in June 1826. James lived in Alleghenytown then; he cleared 4 or 5 acres; built a small stable, planted some peach trees and some cherry trees; some fence; fenced in about 6 acres. In fall of 1820, Mr Hilands run a line for [Woods v. Farmare.] James between him and me. He had cleared some two or three rods over what Mr Hilands said would be his line; he built a fence on that line afterwards. I was clearing for my mother then. My uncle Tobias died in 1816. It was before I went to Cincinnati. Mr Fetterman bought that property at the sheriff's sale. It was on a very cold day; a good many present; Mr Fetterman, Mr Burke, Mr Ross, myself, Jeremiah Woods; John Woods was not there. James was not here at the time of the sale. I had a map of the reserve tract; I showed it to Mr Fetterman; I told him at the time, that lot No. 200 belonged to James Woods and William Carson; a part, if not all. He asked me to show him what lot the house stood on; that is on lot 201; a house that John Woods, Jun. had built. Mr Ross and myself made out this list for the sheriff to levy. I showed him such and such parts of lots had been broken and sold off. Lot No. 200 was not included in what Mr Ross and myself gave in. When he took down No. 200, I then made a statement that a part, if not all of it, belonged to James and Carson. This list was made out in the sheriff's office. Mr Ross and I made out a list of lots to be levied on, as belonging to my father. James Woods was in possession of this lot at the time of the sheriff's sale; his family living in the cabin. When I returned in 1826, he was living in Alleghenytown. James was living on the lot at the time my father told me he had sold the property to James. It was in summer of 1815; he did not say when he had sold to him. I came back from Cincinnati last of June 1826. Hilands did not survey Carson's land in 1820, when he run the line for James and me. Do not know of any survey before my father's death. John Woods went into possession of a part called his in 1820; he remained in possession two or three years. Samuel Croll lived in his house after he left it, till Davis took possession. I bought some lots at sheriff's sale of my father's property. James Pagan, sworn.-I formerly lived near old John Woods. I lived in Mifflin township. Left the neighbourhood of Woods in 1826. I was in the habit of working for Woods. I shingled a house for old Mr Woods. The old man engaged me to put on the roof, and went with me into the woods to show me a shingle tree. I found a tree standing near a fence. He told me I could not cut that tree, it belonged to James. I found another not far from that, which answered the purpose on his own land. Some time after that James Woods came into the house. His brother John and I were sitting in the room. James says to his father, "father, I am going to pay you out for my lot." He laid his pocket book down on the table; took out the money and counted it. I think the amount was 30 dollars. The old gentleman took it up in his fingers this way, and said "now you see, men, I am paid for my lot— and I will make James his deed as soon as possible." James was living on this lot at the time I cut the shingle timber; it was in 1816. I knew James to live there three years. He had peach [Woods v. Farmare.] trees and cherry trees growing-saw corn growing. Can not tell whether he was on the land in 1826, when I went away. I have no idea of when he left the place. I think it was in 1817 when the money was paid. It was after I had been up with James to Waterford. Took up provisions for Pentland, state army contractor. The tree I wanted to cut was a black oak within his line about eight feet. Cross-examined.-At the time the money was paid, my brother John was present. He is dead. No other person present that I know of. The money paid was all paper. I would mind what took place if it was a hundred years. James Woods told me about five years ago, that I must recollect. I could tell him every thing as I do now. I did not ask time to reflect. He met me in Alleghenytown. Never conversed about it till James and I had this conversation. I thought about it many a time, because I thought there would be a lawsuit at any rate. Because the old man was involved; and James had never got his deed. Nothing said in 1817, about the old man's being involved. I heard it afterwards. Robert Taylor told me of it two years afterwards. Have never had any conversation with John, James, or Joseph Woods on the subject. The old woman (Mrs Woods) not present when the money was paid. John Woods was a cripple in the arm in 1817. Samuel Bennet, sworn.-I was present in Alleghenytown in William Carson's shop; it must have been about 1826. James Woods was at the shop. Robert Davis came there. The conversation turned on this piece of property. Mr Davis took out what I took to be a deed. And said he was about buying or going to buy this piece of ground. I did not understand from whom. James Woods said the ground belonged to him. James Woods told him if he bought that ground he would buy a lawsuit with it. They parted on very bad terms. Robert Davis lived on Liberty street at the time. Cross-examined.-He pulled out what appeared a deed. As near as I can recollect he said he was going to buy. It might be he said that was a deed; but not as near as I can remember. That was his language as near as I can recollect. As near as I can recollect when Davis went out of the shop, he had not bought nor would not buy. They appeared to be bad friends from what had passed. It was summer season. It was a warm day. When James Woods summoned me before, I was asked what I remembered. At the time Davis went out of the shop, James Woods asked me to recollect what had passed. Besides Woods and Carson, there was present James Kelso and John Vanderout. William Carson, again.-When I understood my property was sold, I was uneasy about it. I took my deed along and showed it to Mr Ross. He told me they could not hold, if I warned persons not to purchase it, if I heard any body going to buy it. James Woods was along at the same time. He gave him the same direction. Mr Thompson, an acquaintance of mine, was about to pur [Woods v. Farmare.] chase. I gave him notice and he did not buy. I met Robert Davis one day at the Allegheny bridge-told him the property was mine, he should not buy. After this a while Mr Davis came to the shop; he pulled out his deed and said he had bought part of the land: said he had bought it for the express purpose of keeping it in the Wood's family; that if they would pay him the money, he would charge them no interest. He said the piece supposed to be mine he had not purchased, nor would not. Said I had served my time with him, and he did not think it right to buy my land. Some time after that a man was cutting timber. James Woods was present at this conversation in the shop. Davis said to James he had bought the land. He showed the deed, and said he had bought it to keep it in the family. James seemed to agree pretty well about it. James warned him at that time not to buy his part. He said he had not bought his or mine. He gave no reason why he had not bought James's. Kroll was cutting timber on my part. Davis came and warned him not to buy. He said he had bought it and did not care who knew it. Kroll told me this. I met Davis, told him what Kroll had said. We had angry words. He said he had bought it, and did not care who knew it. Davis lived in town here at that time. His father's place adjoins this land. James was not living on the place at the time of the conversation in the shop. It might have been a year after the sheriff's sale, may be more, can not say; can not say who lived on it then. A woman lived there, did not know her. Heard her name was Bennet I think. Know young John Woods; had his arm in a sling eight or ten years. Bennet was present at this conversation in the shop. Plaintiff now gave in evidence deed from John Woods, Sen., to John Woods, Jun., dated March 8th 1815; offered for the purpose of showing a declaration of John Woods in his lifetime, that the land in dispute was the land of James Woods, it having a recital of boundary, as in the deed to Carson, already read, to wit:-"Cornering and running a line with James Woods with James Wiley and myself, the said lot to contain 10 acres, and to be surveyed to contain 10 acres." The will of John Woods, dated September 4, 1819, devised this lot to James Woods. Deposition of Sarah Woods.-"She heard her husband John Woods, and her son James Woods, counting some money, and her husband told her that James had paid him for 10 acres of land joining William Carson on the east, and James Wiley on the reserve line, and John Woods, Jun., on the west, and Harmar Denny or James O'Hara's heirs on the south, and that the land now in dispute is a part of the same 10 acres," &c. Deposition of Fanny Gray.-"That in 1813 I built on the property, having received permission from my father, John Woods, and in April 1815, I gave possession to James Woods, the plaintiff [Woods v. Farmare.] in this suit, by my father's orders, he having told me James had bought it, and showed me the direction of the line. This conversation took place in 1817; I understood James had bought it and paid for it in 1816; but not from my father. It joined lands of Wiley, adjoins Denny, John Woods, Jun., and Wm Carson." Cross examined."I built on that lot, in the fall of 1813, a cabin house. I lived there from that time till the spring of 1815. I never saw my brother, the above-named James Woods, pay any money for the place. I only learned it from my father's words. Never saw any agreement or contract between them relative to this property. Never saw a deed. Have heard the plaintiff and my father talking about it. When I gave up possession in 1815, my brother did not tell me that he had bought it. I received information in 1816 from my father that James had bought it. In 1817, my father showed me the lines-said James had given him 300 dollars for it. I paid no rent, and received nothing for my house. I never heard of my brother paying rent to my father for the property. My father never took any interest in, or gave any orders relative to the cultivation of the place after my brother took possession of it, that I know of. I do not recollect my father telling me that James had bought it more than once, the time above spoken of, which was in 1817; also heard my father say that James had bought the land and paid for it." The plaintiff concluded by giving in evidence the tax lists, showing that the land in dispute had been assessed in the name of James Woods from 1817 until 1826 inclusive. The defendants then gave in evidence the record of a judgment of James Arnold against John Woods, entered October 9th, 1809, for 147 dollars. Fieri facias, No. 96 of November term 1809. Returned stayed. Also fieri facias No. 122, of April term 1819. Returned stayed. Plures fieri facias No. 164 of August term 1824. Levied, inter alia, upon the land in dispute. Venditioni exponas No. 81 of January term 1825, which was returned, sold the land in dispute to W. W. Fetterman and Robert Burke, Esq., on the 24th December 1824. Also the record of another judgment of John Irwin against the executors of John Woods, deceased, entered November 12th 1823, upon which executions were issued and the same levy made and sale at the same time upon this judgment to W. W. Fetterman and Robert Burke. August 24th, 1826, deed of sheriff Leckey to W. W. Fetterman and Robert Burke. November 22d 1826, deed, W. W. Fetterman and Robert Burke to Robert Davis the defendant, in consideration of 430 dollars. Deposition of W. W. Fetterman.-I was counsel of Cæsar Fisher against Woods; Burke was counsel of Myers. We agreed to bid up the property to make something from judgments over the first cases held by Mr Ross. The sale was made under the control of Mr Ross on both the suits. Mr Burke and I bid for the property; and we agreed to make joint stock of it. Joseph Woods |