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United States Senate
Report, December 26, 1837. To Accompany Senate b. 11 No. 93. |
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25th Congress,
2d SessionIn Senate of the United States
December 26, 1837
Read, and ordered to be printed.
Mr. Clayton made the following
REPORT:
[To accompany Senate b. 11 No. 93.]
The Committee on the Judiciary, to whom was referred the petition of
Thomas L. Winthrop and others, directors of an association called the New
England Mississippi Land Company, report:
That this claim has been frequently presented to
the Senate, numerous reports have been made by committees, and, in most
instances, favorable to the petitioners. The statement of facts
contained in this report is taken, in a great degree, from the case of Brown
vs. Gilman, (4 Wheat, 256,) and from former reports made to the Senate,
supported, as this committee believes, by documents submitted to their
examination.
On the 26th of January, 1795, the Legislature of
Georgia passed an act, in virtue of which the Governor of the State was
authorized to grant, and did grant, a large tract of land lying between the
Mississippi and Tombigbee rivers, then in the State of Georgia, but
afterwards in the Territory of Mississippi, to a number of persons
associated under the name of the Georgia Mississippi Company. In the
month of January, 1796, sundry persons, and among them William Wetmore,
purchased of the agents of the Georgia Mississippi Company, then in Boston,
a tract of land estimated to contain 11,380,000 acres, at ten cents per
acre. The conditions of the purchase were, that the purchase money
should be paid as follows, viz: Two cents thereof on or before the 1st
day of May, 1796; one cent more on or before the 1st day of October, 1796;
two and a half cents more the 1st day of May, 1797; two and a half cents
more on or before the 1st day of May, 1798; and the remaining two cents on
or before the 1st day of May, 1799. The whole of the purchase money
was to be secured by negotiable notes of the several purchasers, with
approved endorsers, and to be delivered to the agents upon the execution of
the deed of conveyance by them. It was further agreed that the deed,
when executed, should be placed in the hands of George R. Minot, Esq., as an
escrow, to be delivered over by him to the grantees upon the first
payment of two cents, payable 1st May, 1796; for which payment, and for that
only, the purchasers agreed to hold themselves jointly responsible.
Accordingly a deed of conveyance was executed by the agents, dated 13th day
of February, 1796, to certain grantees named
Blair & Rives, printers. |
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by the purchasers, in trust for the purchasers, and the same was placed in
the hands of Mr. Minot as an escrow, and negotiable notes, with
approved endorsers, were delivered to the agents by all the purchasers for
their respective chares [sic] of the purchase money; and afterwards, the
first payment having been duly made to the agents, the said deed was, with
their consent, delivered to the grantees as an absolute deed.
After the purchase was made, but before the delivery of
the deed, the purchasers formed themselves into an association under the
name of the New England Mississippi Land Company, and executed sundry
articles of agreement and rules relative to the management and control of
their lands: and, among other things, agreed that the several
purchasers should execute deeds for their respective shares in the lands to
three persons therein named, to hold in trust, and with power to sell and
dispose of them agreeably to the order of the directors chosen by the
company. These trustees were to give to each proprietor a certificate
in a certain form prescribed, stating his amount of interest in the land,
and this certificate was to be "complete evidence to such person of his
right in said purchase," and was to be transferable by endorsement.
On the 13th of February, 1796, the Legislature of
Georgia passed an act rescinding the former act, believing it to have been
obtained by improper influences, and therefore void. A knowledge of
this fact, however, did not reach Boston until the 12th of March following;
of which, the petitioners had no notice until after their purchase.
The rescinding was not deemed to impair the title which was granted under
the act of January, 1795.
Thus stood the title to those lands prior to the
cession made by Georgia to the United States, in 1802. It was a title,
which is declared by the Supreme Court in the case of Brown vs. Gilman, (4
Wheat. 256,) to be a strictly legal title in the purchasers. By the
articles of agreement and cession of the 24th of April, 1802, it was
provided that the United States might appropriate not exceeding five
millions of acres for the purpose of satisfying the claims upon it, commonly
known as the Yazoo claims, and including those of the New England
Mississippi Land Company. In pursuance of this provision, an act of
Congress was passed 3d of March, 1803, appropriating to the purpose for
which they were reserved, so much of the said five millions of acres as
should be necessary to satisfy the said claims. This act prohibited
the application of these lands to the satisfaction of any other claims than
those the evidence of which should have been exhibited on or before the
first day of January subsequent thereto to the Secretary of State, and be
recorded in his office.
Pursuant to the provisions of this act, the
claims to the said land were exhibited to the Secretary of State, including
those of the present petitioners; but the final passage of the act providing
for their adjustment and satisfaction was delayed until the year 1814.
On the 31st March, 1814, Congress passed an act
entitled, "An act providing for the indemnification of certain claimants of
public land in the Mississippi Territory."
Among the provisions of this act were the following:
The President was authorized to cause to be issued from
the Treasury of the United States, to such claimants respectively as had
exhibited their claims agreeably to the act of 1803, certificates of stock,
payable out of money arising from the sale of public lands, to the persons |
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claiming in the name of, or under, the Georgia and Mississippi Company, a
sum not exceeding one million five hundred and fifty thousand dollars.
2d. The claimant might file in the office of the
Secretary of State a release of all their claims to the United States, and
an assignment and transfer to the United States of their claims to any money
deposited or paid to the State of Georgia; "such release and assignment to
take effect on the indemnification of the claimants according to the
provisions of that act."
3d. Commissioners were to be, and were appointed,
"To adjudge and finally determine upon all controversies arising from such
claims so released as aforesaid, which may be found to conflict
with and be adverse to each other; and also to adjudge and
determine upon all such claims under the aforesaid act, or pretended act of
Georgia, as may be found to have accrued to the United States by operation
of law."
The releases, assignment, and transfer to the United
States required by this act, were duly executed by the petitioners.
The commissioners appointed were Thomas Swann, Francis
S. Key, and John Law, of the District of Columbia. Before this board
the petitioners, as trustees of the New England Mississippi Land Company,
appeared, and claimed, as the persons entitled to the one million five
hundred and fifty thousand dollars, directed by act of Congress to be issued
to those representing the Georgia Mississippi Company. Their claim to
indemnity was resisted on behalf of the Georgia Mississippi Company, on the
ground hat the consideration money for the said land had not been wholly
paid, and that they were in equity entitled, pro tanto, to the
indemnity provided by the act of Congress. It appeared, on the
investigation, that of the notes given, say $95,760, there remained unpaid,
and were held by the original grantees, the said Georgia Mississippi
Company, most of the members of which (to wit, three-fourths in amount), had
surrendered to the State of Georgia, and received from the Treasury of that
State the sum they had paid; but the other members of that company had
released to the United States, in virtue of the act of Congress of the 31st
March, 1814, and they claimed, in "conflict" with the petitioners, such
portion of the indemnity as was equal to their interest in the notes.
The notes unpaid were chiefly those of a Mr. Wetmore, who, as early as 1800,
had assigned all his interest in said land, and is said to have availed
himself of the benefit of the then bankrupt act of the United States.
The commissioners decided, that although no mortgage or other specific lien
had been given, and although the conveyance from the Georgia Mississippi
Company was absolute, and the deed delivered by their written direction to
the grantees, upon their giving security as aforesaid, yet these notes
created a lien on the lands; and in consequence of that decision they
deducted from the claim of the petitioners the sum of $130,425.
This sum was ascertained thus: at the original
price paid to the Georgia Mississippi Company of ten cents per acre, $95,760
(the amount of unpaid notes) would represent $957,600 acres of land; and as
11,380,000 acres is to $1,550,000, so is the sum of 957,600 acres to
$130,425.
This sum was distributed by the commissioners as
follows: To the individuals of the Georgia Mississippi Company, who
released to the United States, they awarded the sum of $35,022, as their
proportion of interest in said notes, and the residue ($95,403) they ordered
to remain in the Treasury as representing the owners of the notes, who had
surrendered to Georgia, and as thus "accruing by operation of law" to
the United States. |
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The petitioners think themselves aggrieved by this
erroneous decision; and they ask to have the said sum of $130,425 paid to
them by the United States, or that their release to the extent of 957,600
acres of land, (being the quantity covered by that sum,) cancelled, so that
they may assert their title in a court of law.
These are the material facts of the case; and they present
the question, whether the petitioners are entitled to the relief they
ask?
The petitioners, in making their release to the United
States, under the act of the 31st of March, 1814, relied upon the indemnity
of $1,550,000, thereby provided, and looked to the well-known and settled
principles of law as an ample security for the due execution of the act.
The act required a release from them as a preliminary; and, in full
assurance that the well-known and long established principles of law would
guide the decision, they executed the release; and for the consideration or
equivalent which was provided by the act for their release, they looked to
the faith of the Government, and a confident reliance that the trusts
reposed in its agents would be performed with diligence and ability.
They released, not a doubtful title, but one which the Supreme Court, in the
case of Brown vs. Gilman, (4 Wheat, 256,) have declared to be a valid and
legal title. The court, in that case, say "the estate acquired by the
first grantees, (the petitioners,) under the conveyance to them by the
Georgia Mississippi Company, was, beyond all question, a legal, and not
merely an equitable estate." And they further say, that there was no
pretence of any incumbrance upon this estate, they being unanimously of the
opinion that the unpaid notes were not liens upon the land.
The petitioners being thus possessed of a title,
judicially decided to be an unincumbered legal title, which they might have
retained; but, for purposes important in the view of Congress, it was
thought desirable that this title should be acquired by the United States.
The Government held out inducements to the claimants to part with their
rights in it; and it appropriated a large sum of money to pay, or to "make
indemnification" to them for it. And as it was seen that claims,
apparently conflicting, might be preferred, it appointed a commission, with
power --
1. "To adjudge and finally determine upon all
controversies arising from such claims, so released as aforesaid, which may
be found to conflict with, and be adverse to, each other."
2. "To adjudge and determine upon all such claims
under the said act , or pretended act, of Georgia, as may be found to have
accrued to the United States by operation of law."
That the commissioners erred in their judgment upon the
law of the case, we are saved the necessity of an argument to show, since it
is so declared by the Supreme Court, and is even admitted by the surviving
commissioners themselves. (See the certificate of Thomas Swann and
Francis S. Key, Esqs. hereto annexed.) And the committee are of the
opinion that this decision of the court is in accordance with the
general principles of law applicable to the subject. It it be so, it
seems necessarily to follow, that a right to this land, to the extent of the
claim in question, which the commissioners suppose to have "accrued to the
United States by operation of law," did not so accrue, and that consequently
the United States hold it without consideration, because without having
"indemnified" those from whom they have taken title.
Does this error give the petitioners the right of
redress which they seek? |
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The money which they claim is in the Treasury of the United States.
Under the act of 1814, it was within the control of the commissioners,
subject to their adjudication agreeably to that act, and the sound
principles of law by which the act should have been interpreted.
Instead of awarding this sum to the petitioners, as in law and equity they
should have done, they (erroneously, as they admit) awarded it to the United
States, who still hold the money.
It has been objected to this claim, that the act
contemplated a final determination of all controversies respecting claims
released; and that, therefore, the erroneous judgment of the commissioners
ought not to be corrected. The committee think this objection valid as
to that part of the claim which seeks a re-payment by the United States of
the money awarded to the individual members of the Georgia Mississippi
Company, whose claims were found "to conflict with, and be adverse to,"
those of the petitioners. Upon such conflicting claims the
commissioners may apper to have been empowered to decide finally, and their
decisions in relation to them the committee are not disposed to disturb.
But in regard to such portion of the claim as is supposed to have accrued to
the United States "by operation of law," no such conclusive effect is given
by the act to the award of the commissioner; and even were it intended to be
final, the committee do not think it becoming the dignity of the United
States to defend their possession of this fund by a judgment which is
acknowledged to be erroneous. They have funds in their possession
which, in law and equity, belong to the petitioners, and which in conscience
cannot be withheld.
The specific prayer of the petitioners is, that they
may be paid the amount of money which they allege to have been wrongfully
withheld from them by the award of the commissioners, or that they may be
reinstated in their original title to such portion of the land released to
the United States as this money represents. Their agents have urged
the reasonableness of this alternative by a reference to the terms of the
act, and of the release under it. The release and assignment to the
United States were "to take effect on the indemnification of the
claimants according to the provisions of that act;" and they allege
that, if indemnification were not made, the release would have no effect.
The committee regard the act of 1814 as intending, first, to secure to the
United States a transfer of all the title which the claimants had in this
land, and an assignment of their rights against Georgia; and secondly, by
the above clause, to assure to the claimants adequate justice. The
release was made, as it was required to be, in advance; but to give it
effect, agreeably to the terms of the act, indemnification should follow,
which, as is seen to a certain extent, has not been the case. Can it
be said, then, to be a valid release? Can the United States equitably
hold both the money and the land? The committee cannot believe that it
was the intention of Congress to entrap the claimants into a surrender of
their rights on a promise of compensation, and then take advantage of an
error, committed by their servants, to deny that compensation. On the
contrary, they think it is the part of justice that this error should be
corrected.
The United States have received the relinquishment of a
good and legal title to 957,600 acres of land, for which the petitioners
have never received one cent; when, it is admitted that, but for a plain,
palpable, and acknowledged error, they should have received $130,425.
This amount has actually been recovered against the petitioners by virtue of
the very title which |
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they have relinquished to the United States, and for which they have
received nothing. They committee conceive that it is so sufficiently
oppressive to the petitioners to compel them to give credit to the United
States for the sum of $35,022 paid to those who had no right to receive it.
But as the United States have actually paid out the latter sum by virtue of
the erroneous decree, the committee concur in previous reports deducting
that sum; but as for that part of the said sum of $130,425 which, it
is admitted, ought to have been awarded to the petitioners, but which still
remains in the Treasury by virtue of an acknowledged error, and by which
error the United States have been in no way damnified, they do not think it
can be withheld from the petitioners upon any principle of justice or of
good faith; and, therefore, for that amount, they report a bill.
No. 1
Alexandria, December 30, 1822
Having acted as one of the
commissioners under the act of Congress providing for the indemnification of
certain claimants of public lands, in the Mississippi Territory, I do
certify, that the Board of Commissioners did reject the claim for
indemnification made by the New England Land Company, for that portion of
land which was the subject of controversy, in the case decided by the
Supreme Court, between Gilman and Brown, and reported in the fourth volume
of Wheaton's reports. The ground upon which this rejection was made,
was an opinion which the commissioners then entertained, and the title of
this land, through its whole course of transfer, was an equitable title, and
the original purchase money not having been paid for it, they considered
that the debt was a lien upon the land, and that the claimant had no right
to the indemnification, until that lien was discharged.
I recollect that our information of the laws of Georgia
upon the subject of land conveyances was but imperfect; but, in the
discussion of this claim before the board, it seemed to be given up,
that the title in all its stages was an equitable title, and so we finally
thought. The decision, however, of this question, by the Supreme
Court, is otherwise; they have decided that the title was a legal one
throughout, and that question being so settled, I have no hesitation in
saying, that I should, under such an impression of the law, have awarded the
indemnification to the claimants, and I doubt not but that my associates
would have concurred with me in this opinion. I now consider this a
fair subject for the interposition of the legislature, and should deem it
reasonable that the claim should be allowed.
THOS. SWANN
No. 2
Georgetown, January 2, 1823
I have examined, as carefully as I
could, upon so short a notice, the decree of the Yazoo commissioners, of 8th
March, 1816, upon the claim of |
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the New England Mississippi Company, by which the sum of $130,425 12, was
deducted from the indemnity claimed by that company, and awarded to the
Georgia Mississippi Company, on the ground of a lien asserted by the latter
company, for part of the purchase money due for the land which had been
granted to the Georgia company, and by them sold out to the persons
composing the New England Mississippi Company.
The Supreme Court of the United States, in the case of
Brown and Gilman, express an opinion that the claims of the Georgia company
to this lien could not be supported. I have not seen the record sent
up to the Supreme Court in this case, and do not see, in the printed report
of the cause, that the same documents and evidence, showing the
agreements and correspondence of the two companies upon this subject,
were before the court, that had been laid before the commissioners. If
they were, I suppose it would be right to conclude that the commissioners,
and not the Supreme Court, had erred in their decision. The board, in
their decree of 8th March, 1816, refer to the agreements and correspondence
of the parties, and the record in the case of Brown and Gilman will show
whether they were introduced into that case.F. S. KEY
It is now represented to me that,
by the laws of Georgia, a vendor has no lien upon land sold, when he takes a
note for the purchase money. If this be the case, the commissioners
certainly erred in their decision. If such a ground has been supported
before them, they would certainly have decided against the lien.
F. S. K. |
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