MVB, Report on the petition of Stephen Marvin et al., 6 April 1815
MVB, Report on the petition of Stephen Marvin et al., 6 April 1815
April 6, 1815.
The attorney-general, to whom was referred the petition of Stephen Marvin and others, inhabitants of the county of Putnam, reported as follows, to wit:
THAT from the extreme importance of the subject embraced by the reference made to him, the attorney-general has felt it his duty to present to the Legislature the facts and allegations in relation to the claim in question, as much in detail as the time and means of information allowed him would admit of.
In discharge of this duty, he now submits to the consideration of the Senate, all the facts in his possession, in relation,
1st. To the title of the petitioners, and the interest of the state in the maintenance thereof.
2d. The title of John Jacob Astor, and the evidence of the same.
3d. The proceedings which have been had on the subject, as well before the commissioners of the land-office as in the Legislature.
And lastly, his opinion on as much of the subject matter in controversy as by the evidence before him he has been enabled to form.
1st. By an act of the Legislature of this state, passed 22d October, 1779, Roger Morris and Mary his wife were declared to be ipso facto attainted of the offence of adhering to the enemies of this state, and all the estate both real and personal, held or claimed by them, either in possession, reversion or remainder, within this state, were declared to be forfeited to, and vested in, the people of this state.
That by the 15th section of the said act, commissioners of forfeitures were directed to be appointed, and authority given to them to sell, in the manner directed by the act, all estates "forfeited, or to be forfeited to the people of this state," and to execute deeds and conveyances to the purchasers thereof, so as to vest them, their heirs and assigns, with the title thereof. That in the said section it is further provided, "That every such purchaser or purchasers should, by virtue of such deed and conveyance, respectively, be so vested in title, seisin and possession of the lands and tenements so purchased as to have and maintain in his, her or their name or names, any action for the recovery thereof, or damages relating thereto, any actual possession or seisin thereof in any person or persons, notwithstanding:" And further, "That every such deed and conveyance should be deemed to operate as a warranty from the people of this state to the purchaser or purchasers respectively, and their respective heirs and assigns, for the lands and tenements thereby respectively granted and conveyed, against all claims, titles and incumbrances whatsoever; and such purchaser or purchasers respectively, and their respective heirs and assigns, should, in case of eviction, have such remedy and relief upon such warranty, in such manner as should be more particularly provided for in such future act or acts of the Legislature as are thereinafter mentioned." That it was under this act that the lands in question were sold by the commissioners of forfeitures for the Middle District, and the deeds thereof executed pursuant to the act, by the said commissioners, to the petitioners and those whose estate they hold, in the years 1780 and 1781.
That on the 12th day of May, 1784, another act was passed, entitled "an act for the speedy sale of the confiscated and forfeited estates within this state, and for other purposes therein mentioned," the preamble to which states, that it is expedient that the goods and chattels, lands and tenements which had been forfeited to, and were then vested in, the people of the state of New-York, by attainder, or conviction, in the progress of the late war, should be sold, &c. for the purpose of settling and discharging the public securities.
That the first section of the said act contains provisions as to the effect of the deeds to be executed by the commissioners, similar to the one contained in the last mentioned act, adding, that the purchasers under the same should, in case of eviction, "have such remedy and relief upon such warranty, as is consistent with good faith, in such manner as is prescribed by future acts of the Legislature." And further, "That if judgment in due course of law should be obtained for any lands, tenements or hereditaments, which should be sold by virtue of the said act, against any person or persons having derived title thereto, from or under the people of this state, or either of the said commissioners, the person or persons having so obtained judgment, should not have any writ of possession, nor obtain the possesion of such lands, tenements, &c. until he, she or they should have paid to the person or persons possessing the title thereto, derived from or under the people of this state, or the said commissioners, or either of them, the value of all improvements made thereon, after the passing of the said act, as the same should be estimated, valued and ascertained by two or more appraisers, which appraisers should be by rule for that purpose appointed by the court in which such judgment shall have been obtained, unless the parties should agree on the value of such improvement, or agree on and submit to appraisers to value the same."
That on the first day of May, 1786, another law was passed, entitled "an act further to amend the act for the speedy sale of the confiscated and forfeited estates, and for other purposes therein mentioned," by the tenth section of which it was enacted, "That in all cases of purchases made of any forfeited estates, in pursuance of the laws for directing the sale of forfeited estates, in which any purchaser of such estates shall be evicted by due course of law, in the manner mentioned in the first enacting clause of the act, entitled "an act, &c. (being the last mentioned act) such purchaser should have the like remedy for obtaining a compensation for the value of improvements by him or her made, on such estate so by him or her purchased, and from which he or she shall be so evicted, as is directed in and by the first enacting clause of the said act."
And lastly, by the act of the 30th of March, 1809, additional securities are offered to tenants entitled to payment for their improvements.
It is under these several acts that the question of the petitioners' right to payment for improvement, in case of eviction, arises.
2dly. That the title of John Jacob Astor to the property in question is, as set up by him, founded on the fallowing deduction:
1. Letters patent to Adolph Philipse, on the 17th of June, 1697, for a large tract of land, said to include the premises in question.
2. A devise by Frederick Philipse, said to be the heir at law of the patentee, on the 6th June, 1751, in tail to Philip Philipse, Susannah, the wife of Beverly Robinson, Mary Philipse, and Margaret Philipse, and if either of them died without issue, his or her share to vest in the survivors.
3. That Margaret Philipse died not long after, without issue.
4. That the entailment was docked in 1753, by a common recovery.
4. That soon after the tract was divided into nine lots, and on the 6th of February, 1754, Philip Philipse, Beverly Robinson, and Susannah his wife, released in due form of law to Mary Philipse lots no. 3, 5, 9, and one third of the meadow in lot no. 2, containing, in the whole, 51,047 acres.
6. That by a marriage settlement, dated 14th January, 1758, the above released premises were in due form conveyed to the use of the said Mary Philipse and Roger Morris, (with whom she intermarried) and the survivor of them, during their natural lives, and the residue of the interest therein to the use of such child or children as should be procreated between them and their heirs and asassigns for ever.
7. That Roger Morris is dead, having left three children by the said Mary, who reside in England, to wit: Joanna, the wife of Thomas Cowper Hincks, Maria Morris, and Henry Gage Morris.
8. Thomas Cowper Hincks, and Joanna his wife, Maria Morris and Henry Gage Morris, on the 18th day of December, 1809, executed a conveyance, in due form of law, to John Jacob Astor, of all that reversionary interest in and to the lands included in the aforesaid settlement.
3dly. That the proceedings which already have been had on the subject of the said claims, are as follows:
1. On the 15th day of February, 1811, a petition was presented to the House of Assembly, signed by John Haight and others, being the present petitioners, and suggesting their title under the state; the claim by Astor, his willingness to compromise; and praying that a settlement of his claim might be made by the state. Which petition, and accompanying documents, were referred to the then attorney-general, (Mr. Hildreth) who on the 8th of March, in the same year, reported, in substance,—That in his opinion, the petitioners ought to repose themselves with confidence on the security which was already afforded them by the existing laws of the state, and that the demand ought not to be adjusted until the rights of the contending parties had been judicially passed upon.
That the report of the attorney-general was referred to a select committee, consisting of Messrs, Sargent, Cady and Lester, who never reported thereon.—But that in a subsequent part of the same session, Mr. Van Rensselaer, in pursuance of leave given for that purpose, brought in a bill to authorise the commissioners of the land-office to extinguish the claim of Mr. Astor to the lands in question, which was afterwards rejected in committee of the whole.
That, on the 21st January, 1813, a petition was again presented to the Assembly, in behalf of the present petitioners, stating the same facts as in the last case, and praying general relief—which was referred to a joint committee of both house: That on the 17th day of February, in the same year, Mr. E. Williams, from the said committee, reported as follows:
That by an act, passed the 22d of October, 1779, Roger Morris, and Mary his wife, were, among others, attainted and convicted of treason, and their estates forfeited to the people of this state. The commissioners of forfeiture were by that act, appointed to sell the forfeited estates of the convicts; and provision was made in favor of such tenants as had "continually, uniformly and zealously, from the commencement of the war," endeavored to defend and maintain the freedom and independence of the United States. By this act, the pre-emption right was given to such tenants as should produce evidence of their undoubted attachment to the American cause.
Under this law, the commissioners of forfeiture for the middle district, sold to the tenants in possession, the greater part of Fredericksburgh patent, containing fifty thousand acres of land, situate in the county of Dutchess. Both the government and the tenants supposed, that by the attainder of Roger Morris and Mary his wife, the people of this state acquired an absolute estate in fee simple in the premises, and the commissioners accordingly sold and conveyed to the purchasers, their heirs and assigns forever, and executed deeds, which by the act was declared to operate as a warrant from the people of the state.
The original possessors became the purchasers of the state, and by patient perseverance and hardy industry, they and their successors have rendered a rough and rugged wilderness, valuable cultivated farms, possessed at this time by at least one thousand families.
It is now alledged, that by a marriage settlement, made between Roger Morris and Mary Philips, before their intermarriage, the greatest part of these lands were conveyed to trustees, for their use during their joint lives, to the survivor during the life of suah survivor, with remainder to their children. The committee have reason to believe Mrs. Morris is very aged and living, and that her children have conveyed their reversion to John Jacob Astor, of the city of New-York.
This subject has been heretofore presented to the Legislature, and the attorney-general, in 1811, made a report thereon, in which, by mistake, he states the sales were made under the act of 1784, for the speedy sale of confiscated estates. That under the provisions of that act, the possessors were secured their improvements, and the original purchase money and interest—the people of the state were responsible, should the title fail.
Without expressing any opinion on the title of the possessors, or on the extent of the legal responsibility of the state, should that title unfortunately be found defective, your committee cannot refrain from remarking, that this subject demands the most serious and prompt attention of the government.
Not only the peace and happiness of a very great mumber of valuable citizens, but the interest and honor of the state, require that a full investigation of the title should immediately be had, and the legal and equitable responsibility of the state should be ascertained; and if the title should be found in Mr. Astor or his associates, provision should be made to purchase in that title, if to be acquired for a just and fair compensation. To effect this object, the committee reeommend the adoption of the following resolution:
Resolved, (if the honorable the Senate concur herein) that the commissioners of the land-office be directed to examine the title of Roger Morris and Mary his wife, to the lands confiscated and sold by the commissioners of forfeitures for the middle district, on their attainder, situate in the county of Putnam; to report a deduction of that title, with every circumstance affecting the same; to receive from John Jacob Astor and his associates, or any other persons who hold the title or pretended title of the heirs of the said Mary Morris, their propositions or terms of sale, and report the same, with their opinion thereon to the legislature at their next session.
Which resolution was adopted by the House of Assembly, and concurred in by the Senate.
That the subject thus referred to the commissioners of the land-office, was by them, on the 12th June, 1813, referred to the then attorney-general, (Mr. Van Vechten,) who reported thereon, and in his report, after stating Mr. Astor's title as herein before set forth, gave it as his opinion to that board: "That the grantors to John Jacob Astor had a legal vested interest in the premises conveyed to him, subject to the life estate of their mother, Mary Morris, who (it was stated to him) was about 80 years old, and that such interest had been regularly transferred to the said John Jacob Astor, his heirs and assigns."
That some time thereafter, the following letters were received by the commissioners of the land-office, from Mr. Astor:
New-York, 29th May, 1813.
Agreeable to your desire, I have the pleasure to transmit to you the sundry papers or copies thereof relative to the Roger Moris estate. My copy of conveyances to me, deduction of title, Mr. Harrison's and other opinions, extract of proceeding of commissioners on American claims, &c. The copy of marriage contract I do not send, knowing it to be before you on the records in the secretary's office. When I had the pleasure of seeing you here, I intimated to you, sir, that I felt every disposition to meet the views of the state, (in case you find, as I hope you will, the title compleat). You see by the conveyances, the amount paid in the first instance, besides a large round sum paid to my friends in London, who negociated for this property. I could not do less, for they were instructed to pay 40,000l. sterling for this property, in case they could not obtain it for less. Such was the opinion of the gentlemen interested in the purchase, that they thought at this last price it would be a great bargain. It is true we were more than 18 months in negociating, during which time we had the money lying in England without receiving any interest on it.
As soon as the honorable the board of the land-office, to whom I understand this important business is referred, have satisfied themselves as to the title, I will, for my part, be found ready to operate; and if, in the mean time, any farther or other information shall be required, and you will have the goodness to inform me thereof, such as I possess will be cheerfully communicated.
I am, with great respect,
Sir, your obedient serv't.
JOHN JACOB ASTOR.
The Hon. Jacob R. Van Rensselaer.
New-York, Sept, 29th 1814.
Some of the gentlemen interested with me in the reversion of the estate of Mary Morris, have thought it probable that you might wish to have the terms on which they would sell or assign their right. On calculation, it is proved that, at the rate which they purchased, the estate ought to produce $300,000 to make them whole, including interest; and they have requested me to inform you that they would be willing to sell at this rate, of which I would also accept. I am the more desirous to sell as I see the property is in several hands—I mean the right of reversion; and I fear the more divided the more difficult it will be to get them all to agree to a sale.
I presume you know that the estate is worth more than one million of dollars.
I am, gentlemen, respectfully,
Your obedient serv't.
JOHN JACOB ASTOR.
The Honorable the Commissioners }
of the Land-Office, Albany.}
That in the beginning of February, 1814, the commissioners of the land-office made the following report to the Legislature:
The commissioners of the land-office, in obedience to the concurrent resolution of the honorable the Senate and Assembly of the 17th day of February, 1813,
That the annexed copy of a report of the attorney-general, contains a full statement of the title of John Jacob Astor to the land therein mentioned; to which report the commissioners beg leave to refer:—That the said land was sold and conveyed soon after the revolutionary war, by the commissioners of forfeitures for the southern district of this state, as forfeited by the attainder of Roger Morris, and Mary his wife, to a great number of persons, by whom or whose heirs and assigns the same has been highly improved at a very great expense; that by the conveyances to the purchasers, they, their heirs or assigns, are entitled, in case of eviction, to receive from the treasury the original purchase money, with interests and costs, the amount whereof is wholly incompetent to extinguish the title of the said John Jacob Astor, derived from the children of the said Roger Morris, and Mary his wife, upon the terms expressed in the letter from the said John Jacob Astor to the commissioners, a copy whereof is herewith submitted. Thus circumstanced, the said purchasers, unless quieted in their purchases by the interposition of the government, will be deprived of the fruits of more than twenty years' labor.
All which is respectfully submitted.
J. RUTSEN VAN RENSSELAER,
CHARLES Z. PLATT,
SIMEON DE WITT,
AB. VAN VECHTEN.
Which report was referred to a joint committee, who never acted in the premises.
That on the 28th of February, in the same year, another report was made by the attorney-general, Mr. Van Vechten, which purports to have been made in obedience tothe request of the commissioners of the land-office, in which he minutely investigates and discusses the whole subject, and declares his decided opinion, as well that the title of Mr. Astor is valid, as also that the tenants would not be entitled to compensation for their improvements in case of eviction.
The attorney-general is informed that this last report was read in the Assembly, but he cannot find from the journals that any proceedings were had in relation thereto.
The subject being no farther acted upon at the last session of the Legislature, the petitioners now renew their application, and alledge their title under the state, the duty of the state to defend them against the claim of Astor, that the wife of Roger Morris is said to be alive, but between 80 and 90 years of age that immediately after her death they expect a scene of litigation and controversy from which they apprehend great distress, and their present embarrassment in the disposition of their estates arising from the pendency of the said claim, as grounds on which they rest their prayer, that the legislature should pass in their behalf an act of indemnity.
On the subject of the validity of Mr. Astor's title, the attorney-general observes, that to enable him to form an opinion on the strength of which he would feel himself justified in recommending definitive measures by the honorable the legislature, it would be indispensible to have several facts in relation to the said title first fully investigated, and authentically proved. That this has not been done, nor can it in the opinion of the attorney-general, be satisfactorily done, except in a due course of judicial enquiry. He therefore forbears expressing a definitive opinion on that part of the subject, at the same time remarking, that the exhibits of title made by Mr. Astor, connected with his allegations as to the facts resting in parole, are of a nature to demand the serious attention of the Legislature; but that they are not however sufficient to enable him to unite in the unqualified opinions which have been given in favor of that title.
The question whether in case of eviction, the tenants will be entitled to compensation for improvements by the provisions of the different statutes which have been referred to, involves the interests of the parties to a much greater extent than the abstract question of title to the reversion; and upon it the attorney general has bestowed all the attention and consideration in his power.
Arising principally on the statutes, and connected with facts which are not and cannot be the subject of dispute, the same difficulties in deciding on the subject which present themselves in relation to the title do not exist. Notwithstanding the sincere respect which he entertains for the opinions and distinguished talents of his prodecessor, the attorney-general, in the reflection and investigation which he has given the subject, has been able to arrive at but one conclusion, and that is, a clear and decided opinion that the tenants, in case of eviction on the title set up, would be entitled to compensation for their improvements.
Entertaining such views on the subject, and taking into consideration that, from the extreme old age of Mrs. Morris, (if she is still living, which is matter of doubt,) the final decision of the controversy must soon take place; and that moreover the faith of the state is already solemnly pledged to the petitioners for their protection; the attorney-general is of opinion that a refusal on the part of the Legislature to comply with the prayer of the petitioners, by passing a special act of indemnity, would not be incompatible either with the honor of the state or the just rights of the applicants.
He however respectfully submits to the Legislature whether the vast importance of the subject, the liability to changes in the public offices incident to our political institutions, and the consequent differences of opinion which it is now seen may be entertained by those whose official duty it is to protect and vindicate the rights of the state, are not considerations of sufficient weight to justify the appointment of commissioners, whose duty it should be to investigate the subject, and to prepare the necessary evidence for the defence of the tenants against the claim of Mr. Astor, with authority to receive and consider on such further or other propositions of settlement which may hereafter be made, and from time to time to submit them to the Legislature, with the result of their researches, or as much thereof as it may comport with the interest of the state to render public.
M. V. BUREN, Attorney-General.