Enclosure: Legal Opinion of George Wythe, 15 December 1773
Enclosure
Legal Opinion of George Wythe
15th of Decr 1773
Col. Washington seemed to be satisfied as to the King & Queen lands, which belonged to Mr Story, without inquiring into the title before the date of his Will in 1717, if the title be regularly deduced from him.
I think by the Will the estate devised to the daughter was a contingent fee, determinable by her death, without leaving issue or without having alienated, so that the estate in fee, limited upon that event by executory devise, as she survived her child, and had made no alienation took effect, and was well conveyed by the deed of the 12th of April, 1750, from Charles Story to John Robinson esqr. supposing the recitals and suggestions in the deed to be true. If my opinion be wrong, and the daughter took either a pure fee simple, or a qualified fee, determinable, not upon her death without leaving, but upon her death without having ever had, issue, in that case Mr Robinson had a good title by that conveyance, if Charles Story was the daughter’s heir at law, otherwise not.1
Mr Robinson, by a deed to him from Thomas Hickman and Barbara his Wife, 14th Jany 1734 purchased 600 Acres of Land adjoining Wyatts, sold to Story; whether this be part of the Land agreed to be sold by Mr Black to Col. Washington I know not, neither have I seen any other paper concerning it. the deed from Hickman, if he had a title, I think a good conveyance.
By act of general Assembly, 10 Geo. the 3’d, some land in King and Queen County, purchased of Richard Johnson by Mr Robinson, who with others claiming under him were in possession, was vested in William Lyne and some other Gentlemen, in trust, to convey to such persons as claimed under Mr Robinson, with a saving of the Titles of all persons other than those claiming under the will of a Testator who had devised to Richard Johnson the seller: whether the part reserved by Mr Robinson be included in the Land agreed to be sold by Mr Black; whether the testator had a good title; or whether the Trustees have conveyed to Mr Robinsons administrators the part so reserved, which I think they the administrators were intitled to as a resulting trust, I can give no opinion, having seen no papers relating to these Matters.2
If romonkocke be part of the 1683 acres purchased by col. Bernard Moore from Mr William Claiborne, & from Mr Robinson, who it seems derived his title from the Claibornes, as I suppose it is; and if Claibornes title be good, which I understand Col. Washington was satisfied with, and be properly deduced to Col. Moore, as, from what Mr Dandridge says of the Wills of W. Claiborne the Father and Son, and from his abstracts of the conveyances from the heir and Executors of the Claibornes, to Robinson, and from Robinson to Moore, I am persuaded it is;3 yet I am apprehensive there is still a chasm, having in vain search’d in the Secretary’s office for a Conveyance from Mr Robinsons administrators, who had B. Moore’s title, to Mr Black: but this unquestionably may be supplied.4 I have the conveyance from Carter Braxton, T. Walker, T. Jefferson and Power to W. Black which is recorded in the Secretary’s Office, but, without conveyances leading to it, is insignificant.5
I find no deed from Col. Thomas Moore to Bernard Moore to convey nor any writ, in the nature of an ad quod damnum, to dock the intail of any land of the former; but I found the certificate of a survey, with a plot, of 89 acres of land belonging to Thomas Moore, said to have been made 2d of August 1765 by virtue of a writ of ad quod damnum, the writ is mislaid (for it appears one did issue) and perhaps the deed, because the fees were not paid, without which it seems such papers are never recorded. a copy of the certificate is inclosed with this. perhaps these 89 acres are those intended to be sold with the Mill, and supposed to be an hundred; if so a description of the land may be inserted in the blank left in the conveyance and proper steps be now taken to secure the title.6
The deed from Thomas Moore and his trustees to William Seton, conveys, not an hundred acres, but one acre only with the Mill. Col. Moore’s title I know nothing of. I find no material fault in the conveyance.7
Col. B. Moore’s title being allowed Mr Blacks title to the 550 acres called Gooch’s seems unexceptionable.8
Geo. Wythe
D, in the hand of Bartholomew Dandridge, DLC:GW.
1. The will referred to here was that of John Story, the son of Joshua Story, the patentee of the tract of land of which the Pleasant Hill tract that GW was buying for John Parke Custis was a part. GW had sent to George Wythe, who was acting as his legal adviser in his negotiations with William Black, copies of John Story’s will of 1711 and of the deed conveying the property from Charles Story to John Robinson in 1750, both of which GW had secured from the clerk of King and Queen County. See Richard Tunstall to GW, 29 Nov., Edmund Pendleton to GW, 4 Dec., GW to William Black, 6 Dec., and Bartholomew Dandridge to GW, 30 December. Wythe seems to be indicating that John Story left the tract to his daughter and that when she died without issue it went to Charles Story from whom Robinson acquired it.
2. Neither the Thomas Hickman tract nor the Richard Johnson tract was a part of the land that William Black bought in King and Queen County from John Robinson’s trustees and was selling to GW at this time. For the act of the Virginia assembly to which Wythe refers, see 8 455–57.
3. For a description of Romancoke plantation in King William County and for an account of GW’s purchase of it from William Black, see GW to Robert Cary & Co., 10 Nov., nn.6 and 3.
4. Bartholomew Dandridge apparently appended to this enclosure his three-paragraph memorandum in which he comments on points raised by Wythe. In the first paragraph he writes: “The conveyance from Bernard Moore to his Trustees is now found & in Mr Wythes possession. & Mr [Peter] Lyons has promised on behalf of Col. [Edmund] Pendleton & himself to make any conveyance in their power to confirm Col. Washington’s Title under Mr Black. This is all that Mr Wythe appears to want with respect to Romoncock.”
5. Carter Braxton, Thomas Walker, and Thomas Jefferson were among the trustees empowered in 1769 to sell for Bernard Moore an entailed estate of his of 1,800 acres on the Mattaponi in King William County (8 476–78).
6. In his attached memorandum (see note 4), Bartholomew Dandridge explains the confusion about the eighty-nine acres, which was not the 100–acre tract adjacent to Bull Swamp mill, in this way: “Bernd Moore agreed to exchange 100 Acres part of Romoncock for 89 Acres of his Brother T[homas] Moores adjoining, and supposing the 89 Acres to be intailed the writ of ad Quod damnum issued as mentioned by Mr Wythe, but no conveyance was made in consequence of the exchange, so that the legal title to the 100 acres remained in Col. B. Moore & will be in Col. Washington who will also have a right to compel a performance of the Agreement on the exchange which suits all parties. I find too upon inquiry Col. B. Moore had a legal title to the 89 Acres of land supposed to be entailed, & his Brother only an equitable title.”
7. The following advertisement appeared in Purdie and Dixon’s Virginia Gazette (Williamsburg) on 27 Aug. 1772: “To be SOLD to the highest Bidder, at King William Courthouse, on Thursday the 17th of September, A GOOD and well accustomed TUB MILL, entirely new, lying in the lower Part of the said County, adjoining the Lands of Mr. William Dandridge, being the Mill formerly belonging to Colonel Thomas Moore. There is belonging to the said Mill about one Hundred Acres of well timbered Land, with a good Cornhouse and Miller’s House thereon, which will be sold with the Mill. The above mentioned Land and Mill are the Property of Mr. William Seton, and are to be sold by Virtue of a Power of Attorney from him. PETER LYONS.” William Black bought the mill on Bull Swamp at the eastern border of Romancoke and was selling it to GW. Bartholomew Dandridge has this to say in his memorandum about the 100 acres and the mill: “No conveyance has been made by Col. T. Moore to Wm Seton of the 100 Acres of Land adjoining the Mill, but Mr [Peter] Lyons, & Mr [Jack] Power as Attornies of Seton promise to get one of Moore & join him in it to Col. Washington, & to convey the Mill & one Acre.” In any case, Dandridge was to write on 2 April 1774: “Mr Lyons & Mr Power have acknowledged a Deed as Attos. of Seton for the Mill & 100 Acres of Land.”
8. For the part of Romancoke called Gooches, which William Black bought from Jeffery Grisley after Grisley won it in Bernard Moore’s lottery in December 1769, see GW to Robert Cary & Co., 10 Nov., nn.3 and 6, and GW to Bartholomew Dandridge, 6 Dec., n.2.