Some Notes on the claim of rents by Frances, Lucy & Nancy C. Henderson.

The loss I have sustained by this purchase amounts to the whole value of the lands. it is a fair object in me then to1 save as much of that loss as I possibly can; it is justifiable to avail myself of every principle of law or equity, which can protect me, and a candid judge, either in law or equity, would give me the benefit of every such principle.2 the other party, on the other hand, is struggling, not to avoid any loss, but, under colour of law, to catch a gain.3 they have recieved the money once, have been raised and maintained on it, as I have been informed and believe, on better evidence than I have yet had to the contrary, which evidence will be produced, and they are now endeavoring to get payment a second time.

The questions are

1. Who has had possession of their lands?

2. for what rents am I responsible?4

3. have not these been paid?

1. Who has had possession of these lands? On the death of a parent the law casts the possession of his lands directly on his children; and they are from that moment seised and possessed of them.5 the guardian has no possession of them other than that of an overseer or other agent, in the name and right of his principal; he merely occupies or6 employs them. during the time they are occupied or7 employed, the rents or profits belong to his wards; while unoccupied or8 unemployed, the loss is theirs.

Where there are opposite claims to lands, the law adjudges the possession to be in that party in which the right is found ultimately to be; unless the other has an actual occupation or possession, by enclosure, or culture or other actual and exclusive9 use. while I occupied these lots I am, as any other tenant would have been, liable for reasonable rents, no specific rent having been settled by agreement. but while they were open and unoccupied, the claims I might have upon them, if I ever had10 any, no more placed the possession of them in me, than their claims did in them: and the right being in them, the law adjudges the possession to have been in them also, while it was not held exclusively by another. how could I be liable for rents of what I had neither the possession or occupation?11 the lands laid open to them to occupy or to lease. what hindered them? no act,12 of mine either did oppose it, or would have opposed it. the Lower field has been constantly occupied by a tenant. with the rents of my own part, he has paid their parts also, for which I am accountable. if it be asked why I did not account for them from year to year? I answer that their guardian having recieved from me, for them, a sum of money equal to the value of the land, and having the benefit of the annual interest of that, I did expect that when they came of age they also would have preferred, as the other two did for whom he acted,13 the money to the land; and altho’ the legal possession had never been out of them, (for their guardian could not convey it out of them as it never was in him14) that they would have conveyed it themselves, as he had covenanted they should do,15 with the right to the rents recieved.

The legal16 possession of their lands then has been always in themselves; and they might have had the actual possession and occupation if they had chosen it.17 if they let parts of them lie idle, it was their fault and loss. but while others actually cultivated them, these cultivators are liable to pay reasonable rents.

2. For what rents am I responsible?18 for the rents of the lower field constantly, because it has been constantly occupied by a tenant; and that part of them which he has paid to me I am responsible for.

For the Upper field I am responsible where I have actually recieved rents; and for19 the years during which I had it under inclosure, and culture; deducting the expence of inclosing & all other reasonable expences.20 I think the rents of this field, my own as well as theirs, were lost for a year or two by bankruptcy. mr Peyton, who leased them, can state the facts. if we are considered as acting for these parceners, it was voluntarily and without reward, and if we took as good care of their concern as of our own, we are not responsible for their share of the loss.

Of the lots between the town and river I have never had any actual21 occupation. the owners have permitted them to lie open, as I permitted my own which are intermixed with them.22 there is no more reason why I should pay them rent for theirs, than they me for mine.23 and it would be truly hard, if, after losing the fee simple value of these lands, I were to be made chargeable for the profits of theirs, of which I had neither possession, nor occupation, nor any legal power over them.

The Forest lots have also laid entirely open: theirs neglected, & mine little better.24 knowing that the people of Milton would cut their firewood on those lots, with or without permission, I gave permission as to mine; but always on written leases, confining them expressly to my own lands,25 which extended to my other lands on the same side of the road, as well as these, being upwards of 1000. acres of woodlands in addition to those bought of the Hendersons. with respect to these last the lessees had the same means of knowing the allotments which I had myself, to wit, the recorded plat, and as knowing the grounds better, were better able to shew me my lots, than I them. if therefore they cut on the lands of these parceners, it was as if they had cut on mr Watson or mr Alexander,26 they committed a trespass for which they are answerable, not I. but so little could ever be got for what they cut on my own lands, that for some time past all attention to it has been abandoned.27

3. Have not all the rents for which I was responsible been paid?

I paid to John Henderson, the legal guardian 100.£ and to James Henderson the acting guardian28 £390. making £490. or 1633⅓ D.

Where there are several existing debts a payment may be placed, at the will of the parties to the credit of whichever they chuse. where there is but one debt it must go to that. if it be said that this payment was for the conveyance of the right in the land to me, has that right been conveyed to me? is the right in me? on the contrary, is not this very claim of rent founded on the right to the land being in them? and are they not in possession also? how else could they have sold them? the law forbidding the sale of a right to lands of which the party is not in possession. if they are now in possession, they must have been so always; for no act of mine at any time has put them into possession.29 I have received then no consideration, either of right, or of possession, for these £490. consequently they have never had any money-claim against me but for rent, and the payment can be credited to no other account. James Henderson acted as their next friend,30 their guardian in fact, their legal guardian being in this state, not in that. he furnished them with necessaries, and did all their business.31 he maintained them, the mother being scarcely in circumstances to maintain herself. they had no property but this, no other resource but this, or charity,32 for their food, cloathing or education,33 as will be proved, and as indeed is substantially34 proved by the conduct35 of the two elder of the five parceners whose shares were the subjects of the same transaction, and who, conscious of the truth of these facts, confirmed the sales after they came of age. where infants possess nothing but lands, the rents of which will not maintain them, the Chancellor will order the lands themselves to be sold, and the money to be applied to their maintenance and education. it is equally presumable36 then that he would approve, when done by their guardian,37 or next friend, what he would have ordered himself to be done; & that were I disposed to take the trouble of carrying this case38 into a court of equity,39 and the fact should be proved that they had no other resource for subsistence but this, or charity, the sale would be confirmed. more certainly then the court of equity would apply this payment to the rents, and the rents to their maintenance. if James Henderson had advanced his own money for their subsistence, he had a right, out of this payment, to reimburse himself for the past and to anticipate for the future. I say then that, as they can have no claim on me but for rents, and this money was paid to their guardian for them, and he had40 a right to recieve their rents, the payment I made is justly41 applicable to the rents, and that there is no other ground of demand to which it can be applied.42 consequently whatever rents I am responsible for to them have been paid.