Question about the Fairfax Grant controversy related to Hite v. Fairfax, 1786

The controversies surrounding the Fairfax Grant, litigated from 1749-1786, negatively affected settlement throughout the Shenandoah Valley and, by the time of resolution, resulted in the Virginia Court, in Hite V. Fairfax, upholding earlier land grants and patents, made by the colonial governor before the land in question was determined to be a part of Fairfax's grant. So, some land, at least seems to have changed hands.

My question is this: Would the transfers that occurred as a result of the Virginia court's verdict have been recorded in the county courts as, more or less, normal land transfers which would require a new deed?

I have a specific landowner that I'm looking at, and I found an unrecorded deed, 1789, in the courthouse for a tract of the land in question. This landowner was transferring the tract back to the heirs of the individual who's original, 1734, grant was upheld, but the deed was never recorded. The order of the Virginia court, from Hite v. Fairfax, is written into this deed and is stated as the reason for the transfer. There could be several reasons for this not being recorded, but it has me wondering if there was some other mechanism or instrument of transfer for any lands tied up in this dispute. I also wonder if, because upholding the earlier grants voids the later grants, any formal instrument of transfer would be required, other than the original grantees filing their long-held patents and obtaining new, original deeds.

I was able to find out, to my dismay, that the complete record of the case, as well as the dispositions of the tracts involved were lost when Richmond was evacuated in 1865. I still think that the transfers, or assumption of ownership would have been recorded, in some way, at the county court. I'm trying to determine where and which records to search, or if what I think I am looking for even exists.

Chlodio said:

Check out the history of that county, especially when it was founded. That county appears to have already existed in 1789, but it's possible the land was in a different county at an earlier date. You'd have to check the other county's courthouse for earlier transfers. As large as the Fairfax Grant was, I suspect transfers were recorded in many different counties over the years. For instance, Frederick County was founded in 1738. Before that, it was part of Orange County until 1734, and then Spotsylvania County until 1721. Prior to 1721 Spotsylvania County had been part of Essex, King and Queen, and King William Counties, etc... If the land was transferred at any time during those years it might be recorded in the respective court house for that time.

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Thank you for your reply. I have traced back through the counties. There are a few things in Orange County that I want to look for, but I have narrowed most of the search to the counties where the original grants were recorded, and I have the minutes of the Colonial Council, where the grants were announced. The over arching issue, now, is that I have a conveyance of 400 acres to a grantee, but I can only find transfers for about 60 acres of this, and it is known that the settler moved out of the valley--I found his deeds in the new location.

chornedsnorkack said:

It is interesting that even United States that require recording of land ownership, it is hard to enforce. In some jurisdictions, land claimants have strong incentives to apply to correct incorrect land registrations either way: a registered landholder who does not in fact hold the land is vulnerable to tax bills on grounds of registration without getting a benefit from the land, while de facto holder who lacks registration is vulnerable to having the land taken away on grounds of lack of registration.

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In this case, I would think that the rightful holders would have been strongly incentivized to file a deed because the controversy was pretty heated for a number of decades and involved significantly valuable tracts of land. These tracts were surveyed in metes and bounds to create oddly shaped parcels that closed in the water sources on which the first settlers constructed mills. Fairfax objected to this type of parceling, and one of the conditions for allowing these settlers to quietly enjoy their holdings was that they needed to resurvey their parcels into more regular shapes that were no longer than three times their width and did not take in all of the water sources. And they needed to pay quitrents to him. Many of them complied, but when it came to the streams on which the mills were built, Fairfax's demand to resurvey was ignored.

Faifax's conditions seem reasonable, but his goals for settling his grant were somewhat different than the goals of the Crown, from which those early grants were issued. The Crown, and the colonial government wanted to quickly populate the valley to create a buffer between Virginia and the French and natives in the Ohio Valley. From this perspective, one can imagine that the reason for the oddly shaped parcels was because the early settlers wanted to set up mills--infrastructure--quickly, in anticipation of the arrival of greater numbers of settlers. Get the valley populated and productive more quickly. Fairfax, on the other hand, was interested in growing his wealth, and he ran the Northern Neck Proprietary like a feudal manor, with composition fees and quitrents. His colonists, by and large, did not own their lands fee simple and he had the daunting task of imposing his will on settlers, after the fact, who had not received their grants from him. Thanks for replying!

betgo said:

There were big problems with questions about land ownership in Virginia, particularly in what became Kentucky and West Virginia. In those western areas, there were essentially squatters, particularly when settlement was illegal in colonial times, who sometimes did or did not wind up with title to the land. There was confusion about the way land ownership was described based on natural features, etc.

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Yes, huge problems from what I have learned from the historical works on the Shenandoah Valley, as well as from what I am discovering in the public records. The origin of the trouble lies in the fact that the headwaters of both the Rappahannock and the Potomac were assumed to be in the Blue Ridge, which would have limited Fairfax's grant to just the Northern Neck. Now, typically, the English explorers would follow a river to the limits of navigability--usually at the fall line, or first rapids, and call this the "head" of the waterway. Fairfax learned, from "King" Carter, apparently, that the head spring of the Potomac was much further west, on Alleghany Mountain. Fairfax had his grant modified to extend to the head springs of both rivers, but this was after the colonial government began to issue grants west of the Blue Ridge. The colonial grantees basically high-graded the land, surveying by metes and bounds along waterways and ridges to take in all of the streams and springs. When Fairfax begins to issue grants, his grantees discover this, and Fairfax, who had originally assured the earlier settlers quiet use of their occupied holdings, then demanded that they resurvey all of the oddly shaped parcels to maximize the amount of useful, desirable acreage, and pay his composition fees and quitrents. He also demands an account of the numbers of settlers that each grantee brought to his colony. Of course, the grantees did not meet their obligations, but apparently, they work this out but not before throwing all of the ownerships and claims into question. This causes settlers to avoid the lower Shenandoah Valley and exacerbates the problems posed by the Seven Years War as it played out in the region.

I am just now delving into the circuit court records in these counties and hoping that it was the county courts who did the legwork of enforcing Hite v. Fairfax. I have one unrecorded deed, so far, that suggests this was, indeed, the case. Love the map by the way. I'm a geomatics major and I plan to build on a map of the original grants and then show how they were parceled out, and to whom, and what they did on the land. And boy are there some noteworthy persons involved!