Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-09-23

Pa, which announced that conshlta-
tion Of the Whartnaby heirs, some OF
whom live, in Reading and its vicinity,
was held in that city. tbnt day, Septem.
Dor 10th, and thft they came to the
conclusion that they have excellent
prospects Of securing the land upon
which Clayton, Delaware, 10 located"
Tho article went on to say that the
estate lie valued st $50, 600, 600, and that
the heirs now have attorneys at work
on IL. After nfming aome Of the heir5
10 the WhartnaDy estate, the following
explanation of tho claims is madu
"Ths story goes that a Whartnnhy
owned some h1nilreds Of acres On when
the town of Clayton Ia now located.
This was oves a century ago. lie leased
the land to certuiD parties for 30 years,
anu this time expired some years ago.
The descendants Of the alleged original
owner now claim the property. II III
claimed that the lease ia on record at
Dover, and the heirs behave that they
will have no trouble in establish ing
their claim.
1t may DO said in passing that tho
foregoing explanation sounds much like
the explanation usually made of n long-
standing claim that la revived, namely,
based on the existence Of an old lease.
1t is Just possibla that the claim Of
the site OF tho town OF Clayton la really
based 90 beguest OF that property by
former owner, which resulted in a
quit for its possession and Its suhae
quent restoration 10 the beneficiary.
And that beneficiary was James Wbar-
tenby, or Whartonby or Whartinby,
the name being thus variously spelled
III the papers in the case. Additional
interest is attached tn the ease by the
fact that the plaintiff, Whartenby. WAS
represented Ivy james a. Bayard,
Thomas F. Bayard and William g.
Whiteley, and that ON the other aldo
vera Reverdy johnson Of Baltimore,
Charles q. Kerr OF Philadelphia anu
George V. Massey Of Dover.
The suit 10 question was brought in
the United States circuit court for the
District of Delaware on OctubeF Ttb,
1869, unddI the title of John Doc, lessee
of JamesoWhartenby, citizen OF tho
State of California va. Richard Roe,
CASUAL ejector. and james Gilmore. a
citizen OF tine State OF Delaware, tenant
in rosqessiou.'' The names John
Doe' and Orchard Roo are the iicti-
tious names used 10 olden times in
suits of ejectment. Othor defendants
10 the suit were DIR. William Dan,el and
Mason Bailey. who claimed tho owner
chip of the land in dispute, Gilmore
being thar tenant.
As repurted by the Wilmington Com
inercia on June Goth, 1871, when the
trial Of the case was begun before a
jury, it was suit to eject the defend
ants from tract of land in Kent
county, (which includes the site OF
the town Of Clayton. DR.. Daniel and
Bailey had bought the property at a
aheriir's sale and Laid out the town
Of Clayton and sold lots on it," And
according to later article concerning
the case it involved "not only the title
to the property in litigation, hut Ia
that Of all the village Of Clayton, worth
probably in all about 500, 000." After
purchasing the property the defendants
are reported TO have subsequently sold
portions Of it for building lots 10 Clay.
ton. The depot of tho Delaware rail.
road at Clayton is on the land, and also
the whole village OF Clayton" From
which the burden of evidence seems to
indicate that the land in dispute com
prised the site of Clayton or the same
land involved in the claim reported
from Reading.
10 go into the cnse further, the fol,
lowing mads up from tho charge oil
Judge Strong. who sat in the suit, may
suffice: il was an action of eiectment
brought by james Whartonby against
William Daniel, Mason Bailey and
their tenant, James Gilmore, to recover
possession of a tract of land in Ouch
Creek hundred, Kent county. Both
parties claimed under the same person,
jaime Tibbett, who il was adm tied was,
at the time of his death, seized of tbC
land in controversy. In his will, which
was proved March goth. 1929, James
Tibbett had, after bequoatbing aum,
small legacies, left the remainder o.
his estate to his son, Richard Tibbett
during his natural life and latter hi
death to his issue by him lawfully
begotten of his body In case Richard
died without issue the estate was tt
go to the testator's wife, Elizabeth
and his two sistera, Sarah Heath anc
Rebecca Null, during the natural lifl
OF each of them, and after the deatt
of all Of them to James Whartenby, sol
of Thomas Whartenby of the city .
Philadelphia, to him the SAID Jame
Whartenby his heirs and assigns for
ever"
Richard Tibbett died without Lawful
Issue, and Elizabeth Tihhett, the testa
tor'e wife, and his sisters, Sarah Heati
and Elizabeth Null, all died bcforo thu
commencement of the suit
The question. What estate did Richard
Tibbett take under the will of hi
father? was considered by the justice
at some length. 'If 1t were mer
life estate" he writes. ''ths defendant
who purchased at sheriif's sale of th
property, as the property Of Richart
Tibhett unlier Judgment recovered
against him. and who purchased afte
his death las is agreed) acquired NJ
title by their purchase ana, whatove
may be tine right of the plaintiff, the
& are not the owners of the property.
Judge Strong reached tbs conclusion
that Richard Tibbott took but lif
estate. with remainder in fee to hi
children, if any BIO should have. u
follows" he continued, THAT the de
fendants have no title to the land il
controversy. On the death of Richar,
Tibbett without his ever having ha
children lawfully besotten, the aiterna
tive devises took effect unless they wer
tuo remote. !"
lie instructed the jury to tini for th
plaintiff and against tho defendants
which the jury did.
From report in the Wilmington
Commercial il appears that Richar
Tlhbett on May l4th, 1853, conyeye
the property to one lsaau Hazel for 81
and that HAZEL conveyed iG back I
him, this action being tn break th
entail. Tibbett died In 1862, and afte
his death the proDerty wns sold by tn