To Thomas Mann Randolph
Monticello Feb. 26. 95.
Th:J. to TMR.
I recieved yesterday your favor of Feb. 20. and am truly concerned and alarmed at the crisis respecting Varina, and the more so as I apprehend the mode of procrastination proposed by you cannot be made use of. It was in a letter I wrote you from Germantown, if you recollect, after I had written to LeRoy, that I mentioned the possibility of a cross bill brought by myself &c. the object of which should be to pray the Chan cellor to subject the Dover estate in the first place to the payment of the debt, on the supposition that both tracts were comprehended in the same mortgage, and to secure the same debt. In this case there cannot be a single doubt but that the Chancellor would have done it, but I observed in that letter that if the two tracts were separately mortgaged for separate parts of the debt, it would entirely change the case: and this I think I have since learnt to be the fact. Varina being alone mortgaged for a particular portion of the debt, Dover is no more liable to exonerate it than any other part of the estate. In this case the Creditor is left free to act on his mortgaged subject, and you come in as a creditor against the estate for reimbursement, distinguished indeed very advantageously from the others, as being the executor, and authorised to repay yourself your whole debt out of the first money coming to your hands: unless there be creditors of higher degree sufficient to absorb the whole, which I apprehend to be impossible as the debt to you is founded on the deed which is a specialty.—But the anchor of my hope had been in the bill of exchange which I thought was sufficient to discharge the mortgage on Varina, if applied to that. The indulgences given by LeRoy to Ross, would in any case have charged him with the debt, and have made it a discharge of Colo. Randolph’s estate, and more especially in the case which has happened of Ross’s failure in the mean time: for tho’ we have no act of bankruptcy ascertaining the acts and moment of bankruptcy, yet a merchant permitting himself to be carried to prison for a debt, and conveying his whole estate for the paiment of debts, are evidences of failure which need no act of the legislature to declare them such. Were indeed Mr. LeRoy, acknoleging himself obliged to consider the bill of exchange as so much paid, to say he would not credit it to the Varina mortgage, but to that of Dover, there indeed would be ground for application to the Chancellor, and no doubt that he would order it to the credit of Varina, in protection of the marriage settlement. Whether this is to be done in the settlement before the Master in Chancery, or by a new bill, depends on changes in the practice made during my absence from the country with which I am not acquainted. If by a new bill, and my becoming a party will be of avail, and proper, you are free to have such bill brought in my name, and a previous communication of it to me will be unnecessary. But I rather expect it may be insisted on before the Master in Chancery, and that on his refusing to apply the bill to the credit of the lands under marriage settlement, there might be an appeal to the Chancellor.—If a bill however be necessary, and in my name, the following are the facts material for the information of your counsel.—Colo. Randolph in a letter of Jan. 30. 90. written in contemplation of your marriage says ‘I shall put my son Thomas immediately in possession of my estate at Varina, where there is, or may be at a small expence made a very convenient dwelling house and other houses.’ This I received on the 4th. of Feb. and on the same day wrote him in answer that I was contented with the provision proposed for you, and would myself convey 1000. acres of my Poplar forest lands and 25. negroes, but I insisted that both his provision and mine should be by deed of conveyance expressed to be in consideration of the marriage proposed, and executed before the marriage. He accordingly executed the deed, and wrote to me Feb. 15. then for the first time mentioning the mortgage on Varina: but says ‘the sum of money for which it is encumbered is only £1200. sterlg. Mr. David Ross is now under a promise to pay £600. and the money as I am told by his nephew is now ready for the payment, but Mr. Ross having been at his iron works for some weeks past prevents my seeing him. The other payment of £600. will not become due till the 1st. day of next February.’ On the reciept of this letter, I executed my deed, Feb. 21. in which yourself, Martha, and your father are all named as parties, and the considerations expressed in the deed are 1. the marriage proposed to be had, 2. the advancement of my daughter, and 3. the conveyance by Colo. R., for the same purposes, of Varina and 40. negroes. This is recorded in the General court. [By the bye have you examined the record of the mortgage to see whether that was in time? This is always worth attention.] Upon this state of the case your counsel will judge whether I can be introduced as a party in a new bill either for myself or as the prochein amy of my daughter, and whether it be necessary in order to effect delay or any other useful purpose. They will advise you also whether appeal or contumacy may not be made a means of delay. The former is a ruinous one, but would fall on the estate, not on you.1 In the case of contumacy or resistance, you should be very clear that the money can be produced before the compulsions of the Chancery can be displayed.—It may be of some consequence to mention to you the following fact. I authorised Pollard to buy for Mr. Short 20. shares in the James river co. Yesterday’s post brought me his information that Ross would sell 20. on condition of payment by the 1st. of April. This post conveys 3600.D. worth of stock to Pollard, to be forwarded to Philada. for sale, liable to his draughts on John Barnes payable Apr. 1. Perhaps Ross may have had you in view in this; or perhaps you can prevail on him to give you the benefit of it.—Would it not be worth your while to employ Washington in this case? With equal natural abilities, greater reading in the law, he has the reputation of being all attention to his business and that of his client. A little want of attention may lose you some advantage never more to be recovered, and in the scale against which the fee of another counsel would be as nothing.—This being a letter of business, I shall add nothing more but that we are all well, and wishing to see you and our dear Martha, not forgetting Eleonor. Adieu affectionately.
RC (DLC); consists of four pages, with dateline at foot of text; brackets in original; endorsed by Randolph as received 9 Mch. 1795. PrC (ViU: Edgehill-Randolph Papers); consists of first and third pages only; badly faded. PrC (MHi); consists of second page only.
Randolph’s favor of Feb. 20., recorded in SJL as received from “Chesnut grove” on 25 Feb. 1795, has not been found. TJ’s letter from Germantown was dated 17 Nov. 1793. He had written to Herman LeRoy on 11 Nov. 1793. The letter of Feb. 15. 1790 from Thomas Mann Randolph, Sr., is printed in Vol. 27: 776–7.
1. TJ here canceled: “Also whether the non service of the process on.”