“How effective Colonel Byxbe was at populating Delaware and Delaware County is a matter of personal opinion.”
— “Moses Byxbe: His Impact and His Image”
By Ray E. Buckingham
“The Auditor immediately notify the Bellringer to desist now, henceforth, and forever from ringing said bell.”
— Delaware County Commissioner’s minutes from March 1852
Trying to decipher the mysteries of history can be a challenging, frustrating and sometimes infuriating task. At times, things that are taken as near certain fact can turn out to be complete fiction. At other times, things that seem horribly far-fetched can reveal themselves to be true. And sometimes, things that are repeated time and again turn out to be almost comical once the truth is revealed.
An often circulated story about the history of the old Delaware County Courthouse falls into this last category. With an architectural firm now hired to plan the renovation of the building, interest in the building’s history has again peaked. Along with that interest has come a revival of the fanciful, and completely false, tale about the history of the building.
The most reliable source of courthouse lore is the legendary Henry E. Shaw, Jr. Judge Shaw was Delaware County prosecutor, and then served 27 years as judge of the General Division of the Delaware County Court of Common Pleas, presiding that entire time in the 1868 courthouse. As it was his work home for three decades, Judge Shaw took a particular interest in the history of the building and its occupants. A summary of that work can be found on the court’s website.
The myth goes like this: whoever owned the land on which the courthouse now sits was opposed to the death penalty (or at least its public fulfillment). Thus, when they sold the parcel to the county, they included a deed restriction that if there was ever a death sentence handed down in the county, or if anyone was ever put to death there, then the county would forfeit the land, and it would go back to the family who sold it.
A cursory review of the myth reveals so many holes that it appears as see-through as Swiss cheese. First, the myth identifies no owner nor heirs to whom the property would revert. Second, the property was conveyed to the county more than five decades before the current courthouse was built on the site. Third, such a deed restriction would be unenforceable. And fourth, a death sentence has been handed down in that building, and clearly, the county still owns it.
When Delaware was first laid out as a county in 1808, one of its founders, Moses Byxbe, appointed his son, Moses Byxbe, Jr., as the first clerk of the Common Pleas Court. There being no courthouse at the time, commissioners’ records indicate that the court first met on June 3, 1808 at the Barber Tavern, also known as Pioneer Tavern, on South Henry Street, now part of the Ohio Wesleyan campus.
It was seven more years before the Delaware County Commissioners decided to purchase land for a courthouse. On Jan. 7, 1815, Moses Byxbe and his wife, Dorothy, and another of Delaware’s founding figures Henry Baldwin and his wife, deeded property they owned at the northwest corner of Sandusky Street and Central Avenue for the construction of a courthouse. The commissioners’ journal of Jan. 3, 1815, describes the two-story brick structure as being 38 feet by 40 feet, with an 18-foot octagonal cupola. It cost $8,000. There are no known photographs of the building, but Judge Shaw commissioned a drawing in 1997, based upon the description in the commissioners’ journal.
By March of 1852, the building was in such bad shape that the commissioners ordered the bell ringer to stop clanging, worried that the act would bring the building down. The building was demolished in 1858, and after several tax levies failed, the state legislature imposed a $76,000 assessment upon the county to build the current structure in 1868.
Ohio law provides that no deed restriction can be enforceable if the restriction is contrary to public policy. The state Supreme Court has held that restrictions prohibiting schools are void for that reason. Since the death penalty is the public policy of the state, a deed restriction prohibiting it would almost certainly also be void.
So where does this myth come from? Well, it comes from the 1815 deed itself. That deed contains the following language, “The said premises shall in no wise be at anytime subject to be transferred or sold by virtue of any decree, judgment, or execution.” A non-lawyer might think that the word ‘execution’ there is a noun — a death sentence. But in fact, it’s a verb. It simply means that no one can ever take the land as a result of a legal judgment against the county.
Thus, the myth, like the building, has a colorful history, albeit a boring legal explanation.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.