Statement concerning George Mercer’s Estate
Mount Vernon Feby 1st 1789.
From such parts of the following statement of facts (as are applicable to the case) the answer of George Washington must be drawn, to the Bills of complaint exhibited by both Brown and Owens.1
Colo. George Mercer when he left this Country for England vested (as I have been informed, and as the proceedings of the General Court I believe will prove) his brother, James Mercer Esqr., with a power of Attorney to Manage & dispose of his property according to circumstances & his best discretion.
In consequence, & to satisfy some heavy claims on the Estate of the said George Mercer—or securities which were some how or another involved therewith; the said James Mercer by virtue of the Power under which he acted, Mortgaged part of the said George’s estate to Messrs Dick & Hunter of Fredericksburgh.
Nearly about the same time (to the best of my remembrance)Colo. George Mercer—in order to secure the payment of large Sums which he had borrowed in England—also mortgaged the said premises—with other parts of his estate to a certain Richard Gravatt Banker, of London & Mary Wroughton of Bath, Spinster. and, in conjunction with these, sent a Power of Attorney to the Honble John Tayloe, Colo. George Mason & myself to sell & dispose of the whole Mortgaged effects for their use, & to apply the monies arising from such Sales agreeably to the directions contained in the said Power.
A doubt arising, whether the whole Estate of the said George Mercer would be adequate to the payment of his English & Virginia debts—and the priority, or validity of one of the Mortgages (given in England) being questioned,2 it became a matter interesting (in case of deficiency) for the said James to establish the one which he had given to Messrs Dick and Hunter. Accordingly, an amicable suit in chancery was instituted by him, for this purpose: Not to stay the Sale, but to subject the money arising therefrom to the further Order of the Court, as will appear by the Interlocutory Decree of the 5th of November 1773.
Under these circumstances Colonel Tayloe & myself (Colo. Mason having refused to act) Advertised the Estate of the said George Mercer to be sold agreeably to the Decree of the Court3—which sale was accordingly made in Novr 1774 by me, Colo. Tayloe not attending; & Bonds for the amount were taken, payable in Novr 1775 to Tayloe & Washington.
In the interim, between the sales which were made in Novr 1774 and the time at which the Bonds were to become due in Novr 1775. I obeyed a call of my Country in attending the Con-gress which met at Philadelphia in the Month of May in the latter year. From whence (being appointed thereto) I proceeded in the latter part of June following, to take upon myself the Command of the American Army at that time Assembled in Cambridge in the State of Massachusetts.
Seeing no prospect from the then situation of our Affairs of being any longer useful to Colo. Mercer or any of the Parties concerned; about, or very soon after the expiration of the period at which the Bonds became due, I wrote in very decided terms to Colo. Tayloe informing him that I should no longer consider myself as the Attorney of Colo. Mercer and his Mortgagees; or be responsible for any future transactions respecting that trust.4 So far then from having left, at the time of my departure from home, the Bonds in the hands of Mr Lund Washington with authority to Collect and give acquittals thereon, that, at or about the time I wrote to Colo. Tayloe to the purport abovementioned, I directed him the said Lund to deliver into the hands of that Gentleman, the whole of these Bonds; & take his receipt for the same—recommending it to the latter (that is, Colo. Tayloe) to put them into the hands of Colo. Francis Peyton (a person not only well qualified from his knowledge & attention to business for the purpose, but as one who was privy to all the proceedings at the Sale) to collect.5 This however was not done; and applications thereafter being made to Mr Lund Washington (in whose hands the Bonds still remained)—I informed Colo. Tayloe in a subsequent Letter, as he had it seems requested the said Lund to receive the money, that I should not, on acct of its interference with my business, oppose his doing it; as I was sure he would act with fi⟨de⟩lity.6
From ⟨the⟩ date of my first ⟨letter⟩ to Colo. Tayloe I constantly refused to have any farther Agency in this business, until the death of that Gentleman, when I was informed (and upon taking the best advice was satisfied) of the indispensable necessity that existed, for my making a report of the proceedings with respect to the Sale, and such other matters as were my own immediate acts to the Court, in order to the final settlement; which report was accordingly made; but as It was known that I meant to proceed no farther in the business—a second Interlocutory Decree bearing date the 9th day of Novr 1782 took the Bonds out of my hands & placed them in those of John Francis Mercer Esquire, to collect; subject nevertheless, as in the former case, to the future Decree of the Court.
Under this authority it is, that Suits (thoug⟨h⟩ instituted in my name) have commenced—and though I am convinced that Mr Lund Washington was authorized by Colo. Tayloe (notwithstanding my recommendation of Colo. Peyton for this business) to collect the Money which was due by Bonds, yet, as this authority did not proceed from me, the Interrogatories which are founded ⟨thereon⟩ must fall. And those others which depend upon the appropriation of the monies arising from the Sales, are with the Court to decide. To sell the Estate, and to submit the proceeds thereof to its future Decree, was what was required of the Attorneis.
ADS (photocopy), ViMtvL; ADS, sold by Parke-Bernet, item 444, 29–30 April 1958.
George Mercer (1733–1784), the son of John Mercer of Marlborough in Stafford County, served as a captain under GW during the French and Indian War and in 1758 became a lieutentant colonel in the 2d Virginia Regiment under William Byrd. After the war he served as a burgess from Frederick County and went to London as agent for the Ohio Company. He returned to Virginia in 1765 for a brief and troubled tenure as stamp officer and was back in London by the end of the year. Mercer remained in Europe for the rest of his life. By the early 1770s the precarious condition of his finances was evident and contributed to his decision in 1776 to move from London to Paris (see George Mason to GW, 21 Dec. 1773). As GW indicates in his statement, his involvement with Mercer’s complicated affairs began in the 1770s. John Mercer of Marlborough died in 1768, leaving his sons—George Mercer, James Mercer, and the infant John Francis Mercer—as joint tenants of considerable Virginia properties. As his financial status deteriorated, George Mercer in the early 1770s mortgaged various sections of his Virginia lands to Mary Wroughton, “spinster of Bath,” and to Richard Gravatt, John Henry Cazenove, and Elias Lindo, London bankers. His brother James, who was in charge of his American properties, not knowing of George’s English mortgages, mortgaged portions of the same land to James Hunter and Charles Dick of Fredericksburg. George Mercer soon, and GW believed unjustifiably, became suspicious of his brother’s procedures and on 15 May 1773 empowered GW, John Tayloe, and George Mason to handle the sale of many of George Mercer’s American properties, especially his interest in a tract of land of some sixteen-thousand acres in Fauquier, Prince William, and Loudoun counties. This land, which had come to the brothers from their father, was held by George, James, and John Francis Mercer as tenants in common. George Mercer already had mortgaged his undivided fourth part in the tracts, known as the Bull Run and Little River tracts, to Mary Wroughton. Mercer’s power of attorney, recorded in the General Court, authorized GW and his colleagues to “make Partition of the said Tract of land between him the said George Mercer and the said James Mercer and John Francis Mercer and after such division to sell the said George Mercer’s part and convey the same to any person who should be inclinable to purchase in such manner as their said Attorneys or either of them should think proper” (Indenture with William Pickett Sanford, 21 Nov. 1774, ViWarFauCt). Partly because John Francis Mercer was a minor, the parties concerned had to institute a suit in equity in the General Court in the names of George Mercer and Mary Wroughton to obtain such permission to partition the land. The General Court agreed in a decree of 5 Nov. 1773, permitting George Mercer’s attorneys to sell his interest, determined to be 4,157 acres in Fauquier County, at public auction (ibid.). The sale of Mercer’s portion of the tract, together with other tracts owned by him in Frederick and Loudoun counties (see note 3) was held in November 1774. As George Mason had already declined to act for Mercer and John Tayloe was ill, GW held the auction and signed the deeds for the land purchased. For GW’s account of the sale, see Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 3:292–93, where the annotation incorrectly describes the sale as an auction to settle the estate of John Mercer.
1. Apparently proceedings had been instituted in the Virginia General Court in early 1789 concerning the settlement of Mercer’s estate, including bills of complaint laid by Brown and William Owens. Most of the records of the General Court were destroyed during the Civil War, and copies of these bills have not been found. In the American Antiquarian Society, Worcester, Mass., an answer by GW, 15 Feb. 1789, to the “Bill of Complaint exhibited ag⟨ainst⟩ him by William Owens” covers much the same ground as the “Statement” of 1 Feb.: “This Defendant saving to himself all manner of advantage and benifit of exception to the Insufficiencies, Uncertainties and other imperfections and defects of the said Bill for Answer thereunto or to so much thereof as this Defendant is advised is any ways material or necessary for him this Defendant to make answer unto. He this Defendant saith, That he admits that the Complainant was a Purchasor at the sale of the Estate of George Mercer Esquire and that he gave his Bond for the amount of the property purchased to the honble John Tayloe and to this Defendant, And that this Defendant as surviving Obligee has obtained a Judgement in the County Court of Loudoun for the amount of the said Bond.
“This Defendant further saith, that the aforesaid Colo. George Mercer when he left this Country for England vested (as he has been informed and believes) his Brother James Mercer Esquire with a power of Attorney to mortgage and dispose of his property according to circumstances and his best discretion. In consequence and to satisfy some heavy claims on the Estate of the said George Mercer or Securities which were some how or other involved therewith, the said James Mercer by virtue of the Power under which he acted mortgaged part of the said George Mercer’s Estate to Messrs Dick and Hunter of Fredericksburg. Nearly about the same time to the best of this Defendant’s remembrance Colo. George Mercer in order to secure the payment of large sums which he had borrowed in England also mortgaged the said premises with other parts of his Estate to a certain Richard Gravett Banker of London and Mary Wroughton of Bath Spinster, and in conjunction with these sent a power of Attorney to the honble John Tayloe Colo. George Mason and this Defendant to sell and dispose of the whole mortgaged effects for their use, and to apply the monies arising from such sales agreeably to the directions contained in such Power.
“A doubt arising whether the whole Estate of the said George Mercer would be adequate to the payment of his English and Virginia Debts and the priority or validity of one of the mortgages given in England being questioned; it became a matter interesting (in case of defeciency) for the said James to establish the one which he had given to Messrs Dick and Hunter, accordingly an amicable suit in Chancery was instituted by him for this purpose, not to stay the sale but to subject the money arising therefrom to the further order of the Court as will appear by the Interlocutory decree of the 5th of November 1773 made by the general Court and to which this Defendant refers. Under these circumstances Colo. Tayloe and this Defendant (Colo. Mason having refused to act) advertised the Estate of the said George Mercer to be sold agreeable to the decree of the Court which sale was accordingly made by this Defendant in November 1774 Colo. Tayloe not attending, and Bonds for the amount were taken payable in November 1775 to the said John Tayloe and this Defendant.
“In the interim between the sales which were made in November 1774 and the time at which the Bonds were to become due in November 1775 this Defendant obeyed a Call of his Country in attending the Congress which met at Philadelphia in the month of May in the latter Year. From whence this Defendant proceeded in the latter pa⟨rt⟩ of June following to take upon himself the Command of the American Army at ⟨the⟩ time assembled at Cambridge in the State of Massachusetts. Seeing no prosp⟨ect⟩ from the then situation of our affairs of being any longer usefull to Colo. Mercer or any of t⟨he par⟩ties concerned, about or very soon after the expiration of the period at which the Bonds became due this Defendant wrote in very decided Terms to Colo. Tayloe informing him that he should no longer consider himself as the Attorney of Colo. Mercer and his Mor⟨t⟩gages or be responsable for any future Transaction respecting that Trust. So far then from having left at the time of his departure from home the Bonds in the hands of Mr Lund Washington with authority to collect and give acquittals thereon that at or about the time this Defendant wrote to Colo. Tayloe to the purport abovementioned this Defendant directed the said Lund Washington to diliver into the hands of that Gentleman the whole of these Bonds and take his receipt for the same, recommending it to Colo. Tayloe to put them in the hands of Colo. Francis Peyton (a pers⟨on⟩ not only well qualified from his knowledge and attention to business for the purpo⟨se⟩ but as one who was privy to all the proceedings at the Sale) to collect.
“This however was not done and applications thereafter being made to Mr Lund Washington in whose hands the Bonds with the other papers of said defendant still remained. This Defendant informed Colo. Tayloe in a subsequent Letter as he had it seems requested the said Lund to receive the money that he should not on account of its Interference with his Business oppose his doing it as he this Defendant was sure he would act with fidility.
“This Defendant farther saith that from the Date of his first Letter to Colo. Tayloe he constantly refused to have any farther Agency in this Business untill the death of that Gentleman when this Defendant was informed (and upon taking the Best advice was satisfied) of the ⟨mutilated⟩ his making a report of the proceedings with respect to the Sale and such other matters as were his own immediate acts to the Court in order to the final settlement which report was accordingly made but as it was known that this Defendant meant to proceed no farther in the Business a second interlocutory decree bearing Date the 9th Day of November 1782 took the Bonds out of his hands and placed them in those of John Francis Mercer Esquire to collect, subject nevertheless as in the former Case to the future decree of the Court.
“This defendant denies all manner of unlawful Combination and confederacy in the said Bill charged without that that any manner or thing in the said Bill contained material or necessary for this defendant to make answer unto and not herein or hereby will and sufficiently answered unto confessed or avoided travirsed or denied ⟨mutilated⟩ which ⟨mutilated⟩ things this Defendant is ready to aver maintain and prove as this Worshipfull Court shall award, and pray to be hence dismissed with his reasonable Costs and charges in this behalf most wrongfully sustained.”
2. The disputed mortgage was apparently only that of Mary Wroughton. In a letter to Edward Montagu, 5 April 1775, GW stated that “I have directed the Attorney General . . . who was retained as Counsel for Colo. Mercer & his mortgages to appeal from any decision which might even appear to give Messrs Dicks & Hunter’s trust-Deed the Preference, to Miss Wroughton’s Mortgage; for as to Mr Gravat’s, it is entirely out of the question, no person disputing the validity of his Mortgage.” However, writing to Gravatt’s widow, 29 July 1799, GW stated that the “Mortgage of Lands, &ca given by Colo. George Mercer to Mr Gravatt & Miss Wroughton, or the Power of Attorney to sell the sum was contested by the Mortgagees of the same property in this Country, under an authority vested by him, to his brother & James Mercer; and that it was necessary to institute a suit in our High Court of Chancery before any ulterior measures could be pursued with respect to either of the Powers. The result of which was a Decretal order to sell the Estate subject to a final decree, with respect to the different claimants. This was accordingly done (on twelve months credit, agreeably thereto) in November 1774, and Bonds, with security, taken for payment of the purchase money.” After the Revolution the “deranged state into which the War had thrown matters in this Country, and the shutting up our Courts of Justice for a while, suspended all kinds of business for the first years of it; and Colo. Tayloe’s death happening soon after, I was much pressed by the Claimants on Colo. Mercer’s Estate in this Country, but always refused, to renew my Agency in that concern—In consequence of which, Colo. John Francis Mercer, another brother of Colo. George Mercer, having a large claim on his estate, applied for, and obtained a decree of the same Court of Chancery, to receive all the monies due on the Sales—subject, as in the former case, to the final decision of the Chancellor.” Some of the ambiguities and inconsistencies in GW’s statements concerning his agency in the Mercer sale can be explained by the fact that, as he informed Mrs. Gravatt, his statements were “given from memory, all the papers relative to the business having passed from me in consequence of the above decree.”
3. This advertisement, signed by both GW and John Tayloe, reads: “Pursuant to a decree of the honourable the general court, and by letter of attorney from Colonel George Mercer, of Virginia, now in London, will be sold, at public auction, about 3500 ACRES of LAND, in the county of Loudoun, near West’s ordinary, about 12 miles from Leesburg, 40 from Alexandria, and 35 from Dumfries, on Potowmack. This Land is well known by the description of the Bull Run Mountains, and is very fertile. Also 6500 acres on Shanandoah river, in the county of Frederick, opposite to Snicker’s ordinary, and binding on the river about 7 miles. As this tract is part of a survey, one of the first in that part of the colony, its quality cannot be questioned; it is well watered, will admit of 2 mills on land streams, and others on the river. There are now in it 6 plantations, well improved for cropping, 110 slaves, and very large and choice stocks of horses (some of the dray breed) black cattle, hogs, and sheep, which, together with the crops of corn and wheat now growing (expected to be upwards of 2000 barrels, and 5000 bushels) will be sold, on the premises, on the 24th of November next, or next fair day. The Loudoun lands will be sold at West’s ordinary on the 21st day of the same month, and both tracts laid off in lots to suit every kind of purchaser, who may see them by applying to Mr. Francis Peyton, living near the Loudoun lands, and Mr. William Dawson, who resides on the Shanandoah tract. Among the slaves are two good blacksmiths, two carpenters, and an exceeding trusty and skilful waggoner. The aged black cattle and grown hogs will be fattened for slaughter. Purchasers above 25 pounds will be allowed credit for 12 months, on giving bond and security to the subscribers, who will be prepared to make conveyances” (Virginia Gazette [Rind], 30 June 1774).