To Lancelot Minor
Monticello Oct. 29. 12.
I duly recieved by the hands of your brother Colo Minor your favor of Aug. 15. and inclosed in that a list of the debts of mr Marks which you considered so far authenticated as to entitle them to paiment. these were to Colo Callis £21–8–8 with interest from May 1809. to Wm Kimborough £6–4 with interest from 1804. Isaac Winston £2–9–6. C. Yancey 2–6–5 F. Smith £3. amounting with interest to about 150. D. as soon as I shall have got my wheat ground and disposed of at market I will remit you that sum in order to give time for the sale of the lands without pressure; which sale however mrs Marks wishes you to make whenever such a price can be got as you think it reasonably ought to sell for, paiable either ⅓ down & the other thirds at two annual instalments or ½ at the end of 1. year, & the other half at the end of 2. years.
I say nothing of the 2 debts to mr Anderson of £15. & £18. till we know what the balance will be after sale of the 2. hhds of tobo
I am sorry to find difficulties in Colo Callis’s claim for indemnification for the 150. acres deficient. I know his justice to be such as to require nothing but what he deems right. but you and I are acting for another, and while mrs Marks wishes every just claim to be paid yet she would expect us to protect her equitable & legal rights. in the 1st place we should be informed of the nature of David Ross’s claim to these 150. as of land; whether he actually recovered them by due course of law, & if not, what his title is & whether it is really paramount to mr Marks’s title. I suppose Colo Callis can give us this information. another question is as to the amount of the indemnification. I know there is a popular idea, that the warranty of land1 makes the Seller answerable for it’s increased value and that of all improvements on it. but this I believe is not law. I am told that this point has never yet been decided in our court of Appeals; but the most learned opinion I have seen on it, & indeed the most learned opinion I ever saw on any subject, has compleatly satisfied me by authorities of first weight in the law, that the Seller is only answerable for the identical sum of money he recieved. were it otherwise no man would know to what he exposed himself by selling land. suppose him to sell 50. as of pine barrens for half a dollar an acre, & warrants it, not knowing of any claim against it. the purchaser chuses to place on it manufacturing establishments of 100.000.D. or to have a town built on it. it would be strange law to make the Seller who recieved only 25.D. answerable for all this. nor does equity appear to differ from the law in this point. both the Seller & buyer were probably equally ignorant in this case of any other title to the land. both believed it good: both acted with perfect good faith. if any loss happens equity leaves it where the law has fixed it. the law obliging the Seller to repay exactly2 the sum he recieved fixes that portion of the loss on him; and if the land has risen in value the law leaves that failure of gain on the buyer. the Seller was as innocent in the transaction as the buyer, and there is no reason therefore why he should3 make good an accidental profit which the purchaser might have made on the lands. I go into these details to shew that the difficulty I feel on subjecting mr Marks’s estate to refund more than it recieved appears to be justified in4 law & equity. I am in hopes you will be able, in conversations with Colo Callis to mature this subject so as to settle what would be satisfactory to him as well as ourselves. Accept in the mean time the assurance of my great esteem & respect.
P.S. I return mr Marks’s bond to Colo Callis
RC (ViHi: Lewis L. Strauss Papers); addressed: “Lancelot Minor esq. near Yanceyville. Louisa”; franked; postmarked Charlottesville, 3 Nov.; endorsement probably by Minor: “Nov. 1812.” Enclosure not found.
1. TJ here canceled “obliges.”
2. Word interlined.
3. TJ here canceled “lose an.”
4. Word interlined in place of “by.”
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