The case between T. Jefferson & J. Harvie

Thomas M. Randolph decd. James Hickman, Martin Key, William Watson, myself & others held lands on both sides of the S.W. mountains in Albemarle, the head lines of our several tracts on or near the summit of the mountain encompassing some vacant lands in the form shewn by the Surveyor’s plat.

1773. Mar. 11. I obtained for it, an order of council in these words, to wit ‘At a council held Mar. 11. 1773. on the petition of Thos. Jefferson leave is given him to survey, & sue out a patent for, 1000. as. of land on the S.W. mountains in Albemarle between the lines of Thos. M. Randolph, James Hickman, the sd petitioner, Martin Key & William Watson. copy John Blair Cl. Conc.’

There was an idea that Colo. Randolph had an entry or survey for one or two hundred acres within the same limits, liable to a caveat. I told him my order should not prejudice his right, whatever it might be, but should cover it.

In June 1773 Anderson Bryan became surveyor of the county, & some circumstances relative to his coming to the office have had too remarkeable an effect on the present case not to be noted. mr Bryan was a clerk to mr Wayles. on his death, being likely to be out of business, I taught him to survey, procured the surveyorship of Albemarle for him, became his security, took him into my family, & gave him his board for some years. in return he now & then aided me in writing, but was particularly to do my surveying without fees. as soon as he was appointed I notified my order of council to him, & desired him to survey as soon as convenient. but being pennyless, it was necessary for him to work first where he might get some money. on a suggestion afterwards that there might be more than 1000. as. of land in the vacancy beforementioned I made with him two entries for 400. as. each in the following words, to wit ‘Oct. 21. 1774. Thos. Jefferson enters for 800. as. of land to be included by two entries of 400. as. each, to adjoin the lands of Thos. M. Randolph, on the S.W. mountains. copy p. Anderson Bryan S.A.C.’

The law required nothing further of me than to be ready whenever the surveyor should notify me to attend the making these surveys. but I valued the lands too highly not to be anxious for compleating my title. however the supposed entry or survey of Colo. T.M.R. the lines of which if they existed, were necessary to be found, threw some real difficulties in the way of the surveyor. he made now & then an effort to find the lines, as I did also. but they were never found, because, in truth, there existed no such entry or survey.

In the mean time James Marks makes an entry with Bryan for lands within the same limits. Bryan informed him of my prior order & entries; but made the entry for him, as it would be good if there were more land than I claimed. mr Marks applied to me to let him run out his entry, but I expressly refused it.

The revolution now came on and suspended the means of obtaining grants for lands. independance was declared in 1776. but it was not till 3. years after that the legislature re-opened the land office. Mr. Mason then came forward with his plan of a land law. his great object was to remove out of the way the great & numerous orders of council to the Ohio company. Loyal co. Missisipi co. Vandalia co. Indiana co. &c. & the thousands of entries for lands with surveyors, which covered the whole western country; & not being able to find a proper discrimination between those on the Eastern and Western waters, so as to condemn the latter, & leave the former subsisting (to which there was no objection) he involved the whole in sweeping clauses as follows

Acts of ass. 1779. c. 12. §. 3. ‘All orders of council or entries for land in the council books (except so far as such orders or entries respectively have been carried into execution by actual surveys) shall be, & they are hereby declared void, & of no effect.’

By this clause my order of council was compleatly abolished, because it had not been carried into execution by actual survey. if it had been surveyed, it would have been one of those to be laid before the court of appeals.

The section next before of the same act had given as fatal a blow to entries for lands in these words.

§. 2. Where any persons before the end of this present session of assembly hath made a regular entry according to act of assembly, with the county surveyor for any tract of land not exceeding 400. acres upon any of the Eastern waters which hath not been surveyed or forfieted according to the laws & rules of government in force at the time of making such entry, the surveyor of the county where such land lies, shall, after advertising legal notice thereof, proceed to survey the same accordingly, & shall deliver to the proprietor a plat & certificate of survey thereof within 3. months: & if such person shall fail to attend at the time and place so appointed for making such survey, with chain carriers and a person to mark the lines, or shall fail to deliver such plat & certificate into the land office, according to the rules & regulations of the same, together with the Auditor’s certificate of the Treasurer’s reciept for the composition money herein after mentioned, and pay the office fees, he or she shall forfiet his or her right & title; but upon performance of these requisitions, shall be entitled to a grant for such tract of land as in other cases.’ the act of 1780. c. 9. gave further time.

To annul all entries which should not be surveyed within 3. months, was to spare but a small proportion of them indeed. however so great were the clamours against the injustice of abolishing orders of council, & vacating entries on the Eastern waters, against which there were no objections either of right or policy, merely to countenance such an abolition on the Western waters, where policy, either public or private called for it, that the assembly in 1781, by their act c. 29. re-established all orders of council & entries on the Eastern waters, not precluded by entries or surveys made during their abolition, by the following clauses in that act.

§. 7. ‘And whereas by the act of General assembly for adjusting & settling the titles of claimers to unpatented lands, a certain time was limited within which the surveyors of the counties on the Eastern waters should survey all lands within their counties regularly entered for before the end of the session of assembly in which the sd act was passed, which time was by subsequent acts extended to other definitive periods, & it not being in the power of the party claiming such entries to compel the surveyor to a performance of his duty, or to controul those accidents which may sometimes render such performance impracticable, it is therefore unjust that he should lose his rights on any failure of duty in the surveyor, whether wilful or involuntary: Be it therefore enacted, that the surveyors of the several counties on the sd Eastern waters shall proceed, with all practicable dispatch, to survey the sd entries before described, & for this purpose shall proceed in notifying the party, making the survey, delivering a plat & certificate, and in all other circumstances as by the act for establishing the land office is directed in the case of surveys to be made on entries subsequent to the end of the sd session of assembly; & the party interested shall be subject also to the same forfietures of right, if he fail in anything prescribed by the same act last mentioned, to be done on his part.’

§. 8. ‘And whereas by the sd law for establishing the land office, all orders of council or entries in the Council books for lands not carried into execution by actual survey, were made void, which, so far as it respected lands on the Eastern waters, produced much injury to individuals, and no utility to the public: Be it therefore enacted that all orders of council & entries in the council books for lands on the Eastern waters, which were in force at the passing of the sd act, & which have (not)* been precluded from revival by entries or surveys regularly made for the same lands since the passing of the said act, shall stand revived & reestablished, & the rights accruing thereon be vested in the persons then owning the same, their heirs or other representatives: and that the sd orders of council, or entries in the council books shall stand on the footing of entries in the surveyors books and as such be considered to every intent & purpose, save only that where they exceed the quantity of 400. acres, they shall be good for their whole quantity, so far as they would have been good by authority of the sd order of council or entries in the council books before the passing of the sd act.’

Here then all orders of council & entries on the Eastern waters being revived & put on the footing on which they were before the abolition of 1779. my orders of council & entries were compleatly re-established.

Immediately on the passage of this law, to wit, Dec. 18. 1781. I paid into the Treasury £30 composition monies for these lands, & sent the Treasurer’s reciept to mr Harvie, then Register of the land office, with an endorsement on these very entries by the Auditor. to obtain corresponding land warrants, mr Harvie however advised to have the surveys made, & to present the surveys with the Treasurer’s reciept to the Auditors, who would endorse on them that the Composition money had been paid, whereon patents would issue from the land office.

I now returned to the charge with the Surveyor. it will be observed that from the dates of my order of Mar. 73. and entries of Oct. 74. till the land office was shut up in 74. or 75. he had urged difficulties as to Colo. Randolph’s line. from that time till Dec. 81. the proceedings hung on the occlusion of the land office, except during the short intervals allowed by the acts of 79. & 80. which were sufficient but for a very small proportion of what he had to do. he now urged the pressure of other work, as people began to be anxious to get their old entries compleated. he was poor, wanted money; reasons for my being easy with him still. in the autumn of the ensuing year 82. before the surveying season, I was called away by Congress to go to Europe. after passing the winter in Philadelphia, the conclusion of peace superseded my going further. I returned home in June. went to Congress in October, which was again before the surveying season began, & thence went to France, leaving among my last injunctions to messrs Eppes & Lewis, my attornies, to have these lands surveyed. as soon as my back was turned, to wit Nov. 29. 1783. Bryan was induced to survey 495. acres of these very lands for James Marks, under his junior entry, giving him the whole of the compact & fertile part. he says in justification, in his letter of Jan. 10. 1790. that ‘mr Marks assured him that mr Randolph was to have the land, & he made no doubt that that gentleman would give up all title to it, on my making it appear that my claim was prior.’ the poverty of this excuse is too palpable to need a comment. the true one was that he was to recieve a fee if he surveyed for Marks, but none if he surveyed for me. no body, I suppose, offering him fees for the unsurveyed residuum, 5 years after, to wit, 1788. Mar. 27. he surveyed it for me, being then reduced to a ragged string of rocks of 485. acres, to satisfy an order of council & entries for 1800. acres. Marks sold his right to Colo. T. M. Randolph, and he to mr Harvie.

I returned from Europe in the winter of 1789. arriving at my own house Dec. 23. and understanding what had passed, I wrote to mr harvie within 19. days from that time, to wit Jan. 11. 1790. reclaiming my right, and proposing an arbitration. to this he readily consented, entering into some explanations of the ground of his right, & particularly that Marks’s survey was made for the joint benefit of Marks & Colo. Randolph, that Marks had sold his moiety afterwards to Colo. Randolph, who claiming the other moiety under what I had said to him in 1773. had sold the whole to mr Harvie. to this I answer, the entry & survey are made in Marks’s name alone for the whole; & neither trust nor interest for Colo. Randolph appears on the Surveyor’s certificate. but I suppose mr Harvie’s title papers will shew whether Colo. Randolph claimed the whole by purchase from mr Marks, or half from him, & half from me. in the latter case these observations are to be made. 1. the promise was gratuitous, not on that account the less solid in my estimation, but therefore to be kept in it’s original shape. 2. it was made on the supposition that Colo. Randolph had an entry or survey, & was only to protect that. it has become evident he had neither entry nor survey, for no entry can be found in the surveyor’s books, & not a marked tree on the land. 3. it was to protect his land, not give him mine. 4. what was the quantum of land to which the promise went? exactly that of his survey, which was nothing. 5. where was it’s location? exactly where his survey was, which was nowhere. if Colo. Randolph did really suppose that out of a promise, expressly commensurate with his supposed survey he could make a title to a moiety of 495. acres, & has actually upon that title undertaken to convey it to mr Harvie it was indeed a very inaccurate estimate of my promise, but I have said that I will yield it, and so I will. it must have been of an undivided moiety and a fair division as to value is to be made. mr Harvie’s title papers will doubtless shew exactly what is the real interest which Colo. Randolph sold on the ground of my promise, and what was sold on mr Marks’s own right. this latter I reclaim.

This statement is prepared for the consideration of the arbitrators. I annex to this the following documents

1. my original order of council.

2. my entries attested by Bryan the Surveyor.

3. a plat explanatory.

4. the treasurer’s reciept for the £30. with a memorandum written under it by myself when I sent it to mr Wiley to present to mr Harvie, and a 2d. memorandum of his answer communicated to me by Wiley.

5. Bryan’s letter of Jan. 10. 1790.

6. the correspondence of Colo. Harvie & myself on this subject, which will shew how the delays of settlement have taken place, and notes some topics of objection & answer not repeated here.

The facts before stated are all either proved by these documents, or the letters which have passed between us; or, being merely historical, are of public notoriety, excepting only my bargain with Bryan which was made 30. years ago, & not in writing. yet I think it possible it may still be proven if necessary.