Notes on the Rent Claims of the Heirs of Bennett Henderson
[by 30 Dec. 1816]
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.
MS (ViU: TJP); entirely in TJ’s hand; undated. Dft (ViU: TJP); in TJ’s hand; undated; with final page on verso of reused address cover of Ambrose Spencer to TJ, 2 Dec. 1816; heavily revised, with only the most significant corrections and emendations noted below; endorsed by TJ: “Rents in case of Henderson’s lands.”
TJ began composing these notes around 24 Dec. 1816, when he received the letter from Ambrose Spencer on the address cover of which he wrote the last page of the Dft, and finished them by 30 Dec. 1816, when he advised William D. Meriwether that he had left them and related papers with his grandson Thomas Jefferson Randolph, whom he authorized to act for him.
According to TJ, the Hendersons’ lower field has been constantly occupied by William Johnson, of Milton (see Lease Agreement with Johnson, 17 Jan. 1811; enclosure to TJ to Dabney Minor and Peter Minor, 24 Jan. 1817). The other two former Henderson minors, Bennett H. Henderson and Eliza Henderson Bullock, had already confirmed the sales made on their behalf in Kentucky by their brother James L. Henderson (Albemarle Co. Deed Book, 15:164–5, 207–8; Haggard, “Henderson Heirs,” description begins Robert F. Haggard, “Thomas Jefferson v. The Heirs of Bennett Henderson, 1795–1818: A Case Study in Caveat Emptor,” MACH 63 (2005): 1–29 description ends 7–8).
Although Thomas Eston Randolph rented the upper field in 1808–09, it remained unenclosed and unoccupied thereafter until 1813, perhaps due to his bankruptcy (enclosure to TJ to Dabney Minor and Peter Minor, 24 Jan. 1817). For an example of the written leases with which TJ provided Milton residents the right to cut firewood on his land, see his Lease of Firewood Rights to James Marr, 6 Feb. 1813.
1. In Dft TJ here canceled “avoid.”
2. In Dft, remainder of paragraph is added in left margin.
3. Dft: “at gain.”
4. Sentence reworked in Dft from “what rents have been received?”
5. In Dft TJ here canceled “the kind of possession which the guardian has is merely.”
6. Preceding two words interlined in Dft.
7. Preceding two words interlined in Dft.
8. Preceding two words interlined in Dft.
9. Preceding two words interlined in Dft.
10. In Dft TJ here canceled “pretended.”
11. Sentence interlined in Dft.
12. In Dft TJ here canceled “no pretension.”
13. Phrase interlined in Dft.
14. Preceding six words not in Dft.
15. Preceeding seven words interlined in Dft.
16. Word interlined in both texts.
17. In Dft phrase reads “and they might have occupied them by actual possession.”
18. Sentence reworked in Dft from “What rents are due?”
19. Preceding eleven words interlined in Dft in place of “rents are due from me for,” with “for” inadvertently repeated.
20. Remainder of paragraph not in Dft.
21. Word interlined in Dft.
22. In Dft TJ here interlined “I no more occupied theirs than they did mine, and.”
23. Remainder of paragraph not in Dft.
24. Preceding six words not in Dft.
25. Remainder of sentence not in Dft.
26. Phrase from “it” to this point not in Dft.
27. Sentence in Dft reads “the real fact however is that few of the persons who took leases, ever paid any thing; and for some time past all <
have ceased> attention to them has been abandoned.”
28. Reworked in Dft from “the guardian de facto.”
29. Section in Dft from “also? how else” to this point interlined in place of “of it?”
30. Preceding three words not in Dft and interlined in MS.
31. In Dft TJ here added “as will be proved to have been notorious.”
32. Preceding four words not in Dft.
33. Remainder of sentence interlined in Dft.
34. Dft reads “as is further.”
35. MS: “conducted.” Dft: “conduct.”
36. Preceding three words interlined in Dft in place of “would be equally reasonable.”
37. Preceding three words interlined in Dft, which omits the following three words.
38. Phrase in Dft reworked from “and that if this case were carried.”
39. Dft: “Chancery.”
40. Preceding thirteen words reworked in Dft from “and their guardian had.”
41. Dft: “just.”
42. Dft ends here.
- Alexander, Eli; lands of search
- Bullock, Eliza Henderson (Bennett Henderson’s daughter; John H. Bullock’s wife) search
- firewood; TJ allows cutting of search
- Henderson, Bennett; lands of search
- Henderson, Bennett Hillsborough; and Milton lands search
- Henderson, Elizabeth Lewis (Bennett Henderson’s wife); poverty of search
- Henderson, James L.; and Henderson estate search
- Henderson, John; sells Milton properties search
- Henderson case; claims by minor heirs search
- Henderson case; TJ purchases Henderson estate search
- Hornsby, Frances Henderson (Bennett Henderson’s daughter; Thomas Walker Hornsby’s wife); and Milton lands search
- Jefferson, Thomas; Writings; Notes on the Rent Claims of the Heirs of Bennett Henderson search
- Johnson, William (waterman); rents Milton lands search
- Meriwether, William Douglas; and Henderson case search
- Nelson, Nancy Crawford Henderson (Bennett Henderson’s daughter; Matthew Nelson’s wife); and Milton lands search
- Peyton, Craven; and Henderson case search
- Randolph, Thomas Eston (TJ’s cousin); and Henderson case search
- Randolph, Thomas Jefferson (TJ’s grandson; Jane Hollins Nicholas Randolph’s husband); and Henderson case search
- rent; due from Henderson lands search
- Watson, John (1760–1841); lands of search
- Wood, Lucy Henderson (Bennett Henderson’s daughter; John T. Wood’s wife); and Milton lands search
- wood; firewood search