To Craven Peyton
Poplar Forest. July 8. 17.
It is now five and forty years since I have withdrawn from the practice of the law: I have but occasionally, within that period, read any thing on it’s subjects, have rarely reflected on them with any attention, or permitted myself to form opinions with any degree of confidence, still less to oppose these opinions to those of gentlemen now of that faculty, and in dayly familiarity with the decisions of latter, as well as former times. at your request however I have considered the papers you sent me, and will give you my thoughts because you request, and seem to set value on them. still I must warn you against giving them weight where opposed to the opinions of gentlemen in actual practice.
I will state the case as it is presented to my mind by the bill, the answer, the deeds and depositions of Hening and Anderson, putting Lewis’s out of view for reasons which will appear.
In 1802. Charles Lewis decd informed mr Peyton that his father Chas Lilburne Lewis proposed to give him a life-estate in the lands in question, and requested him to draw a deed to that effect. mr Peyton drew, & gave him such a deed; and, without particular enquiry, always supposed it was the one which was used. but, instead of it, another was substituted, which, in addition to the estate for life to Charles, gave him the remainder in fee, on the contingency of his marriage; but, on failure of that contingency, gave it over to his sisters the complainants, and the defendt mrs Peyton. this was dated July 30. 1802. Charles Lewis having entered into the military life, offered the lands for sale, first to others for the sum of 3000 Dollars, and afterwards to mr Peyton. mr Peyton entered into treaty with him, and at the same time with his father for the remainder in fee, which he supposed still in him, as his draught of a deed had left it. the purchase is agreed on, but not at the price offered to others, mr Peyton insisting that he would pay the full value, according to a valuation to be made by some person of their mutual choice. mr Hening, one of the deponents, was chosen, who went over & examined the land, and, on the understanding that the feesimple was to be conveyed, valued it at 5000.D. on the 18th of July 1804. Charles Lewis executed a deed conveying to mr Peyton all his right in the land, and on the 29th of Sep. following, Charles Lilburne Lewis executed his separate deed for the same lands, describing them as the land he had conditionally (meaning contingently) conveyed to the sd Charles Lewis junior, and which the sd Peyton had bought of him, and conveying to the said Peyton the reversion or remainder therein; and binds himself and his heirs to warrant the sd parcel of lands to the sd Peyton and his heirs ‘against the claim of all and every other person whatsoever.’ each deed acknoleged payment of the entire sum at which the feesimple was valued, but the whole price seems to have been1 relinquished to the son, the father viewing it probably as an advancement on his entering into the world, and dispensing therefore with the contingency of marriage. the precise time at which Charles Lewis and mr Peyton began to treat for the land, or concluded that treaty, does not appear in the papers; but it is said to have been many weeks before the execution of the deed. sixteen days however before the execution of that deed, to wit, on the 2d of July 1804. the deed of 1802 having been proved in legal time by 2. witnesses only, the 3d witness is procured to go into court & prove it also. by whom was the procurement of the 3d witness made, so opportunely in point of time? we are left to conjecture; and, in charity to all others, we must fix it on him who was, at the same time, deliberately committing the solemn fraud of conveying the same feesimple to mr Peyton. the answer explicitly abjures all notice of that deed, all suspicion that any other than the one drawn by the respondent had been used, and denies that he had ever heard a suggestion of any remainder, or other interest whatever, conveyed to the daughters. it appears that during all2 the time of these transactions one of these daughters was living in the house with him, and three others with their father in sight of it; that they were all supported by mr Peyton, that the land in question was spread under their sight, so that they could not go to their doors without seeing it, and if any of them were infants in law, they were all at the age of discretion, of marrigeable years, and yet never suggested either to Peyton himself, or to his wife their sister & coparcener that he was buying what was theirs. Charles Lewis died in 1806. having never been married, and in 1814. this title which had slept a dozen years, unthought of by the complainants, and unknown to others, is raked up, a suit commenced, and the father is brought from Tennissee to support by his oath that one of the opposing claims created by himself for which he had practised so much contrivance.
Thus stands the case then, according to the testimony adduced, unless the deposition of Charles Lilburne Lewis be considered as testimony. but it would be against all the laws of human confidence to give any credit to such a witness. in 1802. by deed solemnly executed, he conveys away the whole feesimple of his land to volunteers who pay nothing for it, and in 1804. he again as solemnly conveys the same whole feesimple to another, who pays it’s full value, thus defrauding his son in law and one daughter out of 5000.D. the feesimple value, to give it gratis to others, and then offers himself as a witness to prove his own palpable and recorded fraud; a fraud the more revolting as coupled with the act of hunting up a 3d witness to rivet rights under his 1st deed, while he was deliberately treating to convey the same rights, and did convey them to another by a 2d deed. if it be urged that this witness came in of his own accord, and on a sense of duty, it must be admitted that this tardy impulse of conscience in the witness came very à propos, and at the eleventh hour. but when we consider that 16. days more, added to the 2. years he had held off would have made his aid too late, can we avoid suspecting that he was sought and brought to the book at this critical moment by some one who knew intimately what was going forward? but by whom? when we take a survey of all the parties interested in the fraud, who could it be? Peyton? impossible. the daughters? their situation, habits, and opportunities of life clear them of this active operation. was it Charles Lewis? or Charles Lilburne Lewis? the wish to help sisters might be a motive, but that to help daughters is a stronger one; and falling on one convicted of fraud by his own acts, exposes, without a doubt, the unseen hand by which this witness was beckoned in. these considerations leave the answer of the defendants without impeachment by this deposition, and the more so as two unexceptionable witnesses are requisite to invalidate the peremptory denial of notice in the answer.
Some questions, of more or less difficulty, have been raised in this case, which are however but collateral to what is important. e.g. the answer questions whether the Contingent remainder limited to the daughters is not too remote to be sustained by law? the Counsel will consequently enquire whether the law will not await a contingency which is certainly to happen at or before the end of a life in being?
2. Whether persons, not parties to the deed, can claim under it? here the difference must be shewn between this and every family settlement whereto it is rare to make any other party but him who takes the first estate.
3. Under the law which declares that no deed shall be good against a purchaser without notice, unless proved by 3. witnesses, and recorded within 8. months, the Answer questions whether the deed of 1802. is not a mere nullity as to a purchaser? a question well worthy of being tried. I know indeed that in former times, sound lawyers were of opinion that a deed whose proof was compleated after the 8 months, was, from the time of completion, good in Equity against those who purchased after that completion. but I have been told that some latter decisions have contradicted that opinion. with these decisions I am not acquainted. but certainly the late act of assembly declaring that the deed shall be good from the time of such completion raises a presumption that it was not so before, and consequently not when this deed was executed.
But, independently of this last question, the following, in my view, are the strong points in this case.
1. Mr Peyton is a purchaser for valuable consideration, actually paid. this is uncontrovertibly established by the answer and depositions, and is not even questioned in the bill.
2. he is a purchaser bonâ fide, without notice. Altho’ the record of a deed, the pendency of a suit, the enactment of a law, are considered as notice of the thing to every body, and that this is a salutary construction generally, and for the safety of titles, yet we all know that these things may all take place, and an individual have no knolege of them. altho’ the deed of 1802 was lodged in court for proof, yet bystanders rarely notice a deed at the time it is produced in court, and more rarely know it’s contents, and that this was a secret transaction there is every reason to believe. Hening & Anderson knew nothing of any claim of the daughters, altho’ they were intimate with the affairs of the family. it is more probable then that it should have been unknown in the neighborhood; and the more so as no proof is produced that it was known to any mortal except to Charles Lilburne Lewis the principal agent in the deception of the defendants. they, by their answer fully purge themselves of actual notice, declaring that they never heard, or suspected that such a claim existed until 1814, a dozen years after the date of the deed. Charles L. Lewis, to be sure, swears he mentioned it to Peyton; but his recorded deed attests the reverse of his oath, when it warrants a feesimple title to Peyton against all persons whatsoever; and this pointed testimony only fills up the measure of the fraud he has practised. the evidence of a witness thus palpably convicting himself, cannot be recieved; and even could it be, it is still but of a single witness, where two are requisite to overweigh the testimony of the answer. the fact of no actual notice then is established. nay more, it is established that the actual notice was the reverse: for the deed of 1804, as has already been observed, was a solemn declaration, and actual notice that he had never, by any other, conveyed away the same remainder, that it still continued in him, and would pass to mr Peyton by the deed he was signing. common sense too testifies that if mr Peyton had had actual notice that the remainder was no longer in the father, he would not have treated for an useless conveyance3 from him, and still less would have paid the full feesimple value, when he was to obtain but a life estate.
As to constructive notice from the proof of the deed in court, if the deed, according to an opinion before noticed, be not an absolute nullity, because not proved within 8. months, it is Equity only which can interpose, and make it’s subsequent proof good; and Equity will withold it’s interposition, if other cause, good in equity also, can be shewn to the contrary. now, altho’ the 2d deed was not executed till the 18th of July 1804. 16. days after the probat of the other by the 3d witness, yet it seems, and may still be proved that the contract was concluded absolutely, between the parties, several weeks before mr Hening was called on to value the lands, and to prepare the deed, and that it was still several weeks more, after he was called on, before the deed was executed. the purchase then was made, and the land (which had been long in possession of the def. under a former lien) was become the defendant’s in equity several weeks before this tardy completion of the other probat. the actual conveyance was, in conscience but a ceremony, due from the instant the bargain was concluded; and Equity considering always that as already done, which ought to be done, will make the deed look back to the date of the contract. it will not interpose to set aside a law, or to make good an imperfect act, in favor of the one party, when, according to it’s own principles, the other has the equitable right, united with the possession. as the probat of the 3d witness then was a nullity in law, no constructive notice arises in law; and if equity would in any case supply a constructive notice (a thing unjust in itself) where there was none actually, yet it will not do it where there is a prior and greater equity in the other party, and proof of the absence of actual notice. the defendant then is a purchaser for valuable consideration, bonâ fide paid, & without notice actual or constructive.
3. the Complainants are mere volunteers. the deed as to them expresses no consideration whatever, not even that of natural affection. but had this been expressed, altho’ it is a good consideration, it is not a valuable one, but merely voluntary, and would be set aside, in favor of a plaintiff, a bonâ fide purchaser, for valuable consideration. a fortiori then a court of equity will not enforce a deed, in favor of a mere volunteer, against a defendant, a bonâ fide purchaser, for valuable consideration. and for greater reason, still, will it not avail mere volunteers of the fraud of their donor against such a purchaser. surely a court of equity can never lend it’s power to enforce a fraud, whether in favor of him who commits it, or of any other claiming under it.
And if it will not come in aid of persons against whom nothing can be said but that they are mere volunteers, who have paid nothing for the lands they claim, much less will it do so, where the volunteers themselves have connived at the fraud, & participated in it. living, as these complainants did, either in the house of the defs or in sight of it, the two families, father, brothers & sisters in habits of daily and family intercourse, a treaty going on for the sale of the lands almost4 under their feet, it was impossible it should have been unknown to any of them, that it should not at some time have been mentioned in conversations in their presence; & the smallest hint would have been sufficient to give alarm to these complainants, to put them on the alert for the safety of their own title. yet, witnesses as they must have been of the fraud practising on their sister & brother in law, they see it go on in silence, give no hint of their title, never drop a caution even in conversations with their sister, but suffer their rights to be conveyed away, and the full price to be paid for them, by an innocent purchaser, without giving him any notice or caveat as to their prior claim. I have no books to turn to from which to cite cases, but I know that the books abound with decisions that the mere silence of a person while their rights, even of the most valid character, are bargaining away to a purchaser without notice of them, implies either assent, or participation in the fraud, and for ever bars any future claim on their part; and it has the same effect in the present case as if they had joined in the deed conveying the lands to the defendants.
If then the deed of 1802. was not a nullity for want of timely probat, which is to be enquired into, it was Null by the want of notice to the def. either actual or constructive, by the active fraud of the father, and the passive fraud of the sisters, by the valuable basis of the one claim, and the voluntary one of the other, and secured by the sacred character of equity, which will never lend it’s authority to enforce fraud against innocence.—Such, dear Sir, are the views of your case which present themselves to my mind. the stress I lay on the conclusion of your purchase before the final probat of the adversary deed may so far merit notice as to consult your counsel on the expediency of taking measures for opening again the pleadings so as to procure the establishmt of that fact, either by your own amendatory answer, or by the reexamination of mr Hening, & in this no time is to be lost. but I claim no confidence in these opinions, conscious as I am of a long-lost familiarity with subjects of this nature. the better information of your counsel must be your guide, and what I offer is but in proof of my attention to your request and of the great esteem and respect of which I now tender you the assurance.
RC (Mrs. Charles W. Biggs, Lewisburg, W.Va., 1950; photocopy in MsSM); addressed: “Craven Peyton esquire Monteagle.” PoC (DLC); endorsed by TJ. Dft (ViU: TJP); on verso of Peyton to TJ, 26 June 1817 (first letter); partial abstract entirely in TJ’s hand reading as follows:
“Lewis v. Peyton.
Subsidiary questions. 1. can one, not a party to a deed claim under it?
2. is the wording of the deed Lewis to Lewis, such as, altho’ recorded to amount to notice?
3. is the deed Lewis to Lewis to be considered as a will? & if so, was it revoked by that of Lewis to Peyton?
4. is the limn too remote? 5. Warranty
The strong points.
1. Peyton is a purchaser for valble and full considn
2. he was a bonâ fide purchaser, with constructive notice indeed (from the recording of the deed) but not actual notice
3. his actual notice was the contrary from the silence of the parties.
4. the daurs [daughters] are volunteers, and altho’ the Chancellor might set aside the 2d deed in favor of creditors, he wd not in favr of volunteers.
especially of volunteers, participating in a fraudulent silence.
5. not only the silence of C. L. Lewis on executing the deed to Peyton, but the import of that deed itself convicts him of gross fraud, & disqualifies him from being a witness.”
Enclosed in TJ to Peyton, 16 July 1817.
Peyton won this case the following year and still held title to the Monteagle estate at his death in 1837. The parcel was part of a tract sold by his executors in 1838 (Peyton to TJ, 14 Sept. 1818; Albemarle Co. Deed Book, 36:367–8). For a discussion of the case as it related to the larger legal issues of the Lewis family, see Boynton Merrill Jr., Jefferson’s Nephews: A Frontier Tragedy (1976), esp. 50–4 and 314–6.
For the deeds referenced by TJ above, see note to Peyton to TJ, 26 June 1817 (second letter). In addition to mrs peyton (Jane Peyton), the daughters of Charles L. Lewis and TJ’s sister Lucy Jefferson Lewis included Martha A. C. Lewis (Monroe), Lucy B. Lewis, and Ann M. Lewis. The Virginia law which declares that no deed shall be good against a purchaser without notice was enacted on 13 Dec. 1792, while the late act of assembly that amended this regulation became law on 9 Feb. 1814 (Acts of Assembly description begins Acts of the General Assembly of Virginia (cited by session; title varies over time) description ends [1792–93 sess.], 48–50; [1813–14 sess.], 35–7). Peyton’s ownership did not come into question until 1814, when the recording of a 10 Sept. 1805 deed from Charles L. Lewis to Peyton for a final portion of the Monteagle tract was challenged (Albemarle Co. Deed Book, 15:409–10; TJ to Peyton, 13 Aug. 1814).
1. TJ here canceled what appears to be “paid.”
2. Word interlined.
3. Reworked from “a conveyance.”
4. Word interlined.
- Anderson, Mr.; and dispute of C. L. Lewis and C. Peyton search
- Griffin, Lucy B. Lewis (TJ’s niece); dispute with C. Peyton search
- Hening, Mr.; and dispute of C. L. Lewis and C. Peyton search
- law; TJ provides legal advice search
- Lewis, Ann Marks (TJ’s niece); property dispute with C. Peyton search
- Lewis, Charles (d.1806) (TJ’s nephew); property dispute with C. Peyton search
- Lewis, Charles Lilburne (TJ’s brother-in-law); dispute with C. Peyton search
- Lewis, Charles Lilburne (TJ’s brother-in-law); family of search
- Lewis, Lucy Jefferson (TJ’s sister; Charles Lilburne Lewis’s wife); family of search
- Monroe, Martha Amanda Carr Lewis (TJ’s niece; Daniel Monroe’s wife); dispute with C. Peyton search
- Monteagle (C. Peyton’s Albemarle Co. estate); dispute over search
- Peyton, Craven; dispute with Lewis family search
- Peyton, Craven; letters to search
- Peyton, Jane Jefferson Lewis (TJ’s niece; Craven Peyton’s wife); dispute with Lewis family search
- Virginia; laws of search