From David Stuart
Abingdon [Va.] 2nd April 1790
As it was my desire to give you the fullest information on the subject submitted to your judgement, I have to lament that I have failed; particularly, as I think it would have been of some importance, to have had the rents fixed, before the plantation was improved in its appearance, by the advance of the Spring—However, in a matter of such moment, a clear knowledge of every circumstance is certainly superior to every other consideration—To aid the explanations I have already given, and those I shall now attempt, I inclose a copy of the bill in Chancery, exhibited by Mr Dandridge.1 I wish it was in my power to furnish you with all the papers on the subject. By the agreement, Mr Custis was not to pay ’till the expiration of the 24 years—By the mortgage however, he undoubtedly had the right to pay at any time before, he thought proper—The reason of Mr Alexander’s disputing this right, is founded on the difference between the agreement, and Mortgage—As the words “on or before,” are not in the agreement, as well as mortgage, he insists these words were introduced without his knowledge, and contrary to the intentions of either party—But this evasion in the opinion of my Lawyers, would have been of no avail if the money tendered had been of the proper kind. I informed you in my last, how it happened that this discovery was made—This being the case, you will observe that the object of the Bill, so far as it prays that the Mortgage should be cancelled, in consequence of the tender, is defeated—You appear to be in the same error with respect to the scaling the £12,000, that my Lawyers were in; ’till last Summer, when the trial was expected—Tho’ this sum no doubt gave rise to the £48,000: You will observe, from the short recitement of the agreement & Mortgage in the Bill, that there is no mention of it—The £48,000 only is mentioned—On discovering this circumstance, the Lawyers are of opinion that the £48,000 will be scaled, as there is no foundation for the Court to enquire, how it accumulated; and every man has a right to sell his property for the most he can get—The omission of the £12,00 in the writings, was no doubt asigned, to avoid all evidence of Compound interest—Had my Counsel continued in opinion, that the £12,000 would be scaled I should never have thought of a compromise; for at either of the scales of five, according to the time of the agreement or six, the time at which Alexander contends the deed and mortgage ought to have been dated, I should have thought it a good bargain to the estate—I confess I was alarmed at the sum to which the £48,000 would amount, at either of the scales, and immediately consulted you respecting the compromise—I informed you last fall, of the dispute about the time at which the deed is dated, and when Alexander contends it ought to have been dated. This I informed you, was the circumstance on which my Lawyers founded their advise to me, to suffer a nonsuit; if a compromise could not be effected—hoping that Alexander at the expiration of the 24 years would not be able to exhibit such strong proofs of its being Post-dated, as he could at present—It seems that the deed and mortgage both, are dated the 10th of April 1779. The scale at this time was sixteen—If we could have assurance in succeeding in this point, I should disapprove of a compromise. But tho’ the Lawyers view it as the most favourable circumstance in the cause, they are by no means sanguine respecting it; as Alexander might obtain an order, and no doubt would, to perpetuate the testimony, proving how it happened to have this date, rather than the 25th December 1778—It is certain, Mr Custis was put into possession on the 25th of December 1778, and had his Overseer with all his hands there—I find I mentioned in my last letter to you on this subject, that the Deed was dated the 25th December 1778—This has happened, from the opinion at present entertained by my lawyers, on a consideration of all circumstances, that Alexander at present at least, would succeed in establishing it at this period—I have already mentioned, that it was the expectation of Alexander’s Lawyers to have the scale fixed according to the date of the agreement, which would be five—Marshall2 thinks according to the present adjudications, was it a suit at Common Law, that it would be regulated by the date of the deed; but that in a suit of Chancery, exhibited by us, and resting on the merits of our cause, the Chancellor would order the error to be corrected, if the testimony adduced, was strong.
I shall now proceed to answer your questions, tho’ many of them are already solved; as it will be the best means of drawing the whole to a point—1st What are the opinions &c.—It has ever been the opinion of those I have consulted, that Mr Custis had the option of paying at any time, before the expiration of the 24 years—2nd Whether in the articles &c.—There is no exception or proviso whatever against paper money in any writing whatever—3rd At what period &c. The agreement was entered into the 1st of July 1778, the deed is dated on the 10th of April 1779—the Virginia scale at the first period is five, at the second sixteen—I am not acquainted with the Continental scale—On December 25th 1778, the time at which Alexander contends the deed ought to have been dated, the scale is at six—4th In what sort of paper money &c.—The inclosed description of the money certifyed by the person who tendered it, and one of the witnesses will satisfy you of the sort tendered; on which I inclosed in my former letter the opinions of Messrs Randolph, Marshall & Innis, that it was not proper—Mr Randolph’s opinion contained the reason, (if I don’t forget) why it is not proper—You will see by the inclosed bill, that it was tendered in May 1781. Why the proper money was not obtained I cannot say—You have now every information which I can give you on this subject—If there is any point in which I have not succeeded, I will make any application you shall propose to my Lawyers to clear it up—I have only to add further that I saw Mr Randolph on his return from New York and mentioned the conditional agreement I had made with Alexander. He expressed much satisfaction at it, and thought it fortunate for the estate, Alexander had acceded to the compromise—As I must set out for Williamsburg, by the 10th of the month, I must beg, if you approve of the agreement, that you will inclose your approbation to Mr Lund Washington, whom I must depute to manage the fixing the rents in my absence3—I must also beg, you will drop me a fiew lines directed to the care of Mr Nicholson at Williamsburg, signifying your determination, one way, or the other, that I may know what directions to give to my Lawyers. I am Dr Sir with the greatest respect Your Affecte Serv:
This letter concerns Stuart’s protracted negotiations with Robert Alexander on behalf of John Parke Custis’s estate. For background, see Stuart to GW, 14 July 1789, n.7, 12 Sept., 3 Dec. 1789, 11, 15 Mar. 1790, GW to Stuart, 21 Sept. 1789, 23, 28 Mar. 1790, Edmund Randolph to GW, 23 Dec. 1789.
1. One of the enclosures was probably a bill of chancery, dated 2 April 1790, for £1,000 (DLC:GW). The agreement also enclosed and signed by David Stuart and Robert Alexander, reads: “Whereas by an act of the Assembly of the Commonwealth of Virginia entitled ‘an Act to enable David Stuart to reconvey a tract of land purchased by John Parke Custis of Robert Alexander’ it is declared
“‘That any agreement or contract which the said David Stuart, by and with the consent of George Washington Esquire, to be expressed under the hand and seal of the said George Washington Esquire, shall make or enter into respecting the surrendering the said Lands to the said Robert Alexander, shall be deemed and taken to be valid and effectual to all intents and purposes’ And whereas an agreement hath been entered into accordingly between the said David Stuart and the said Robert Alexander in the words following.
“Articles of agreement made and entered into this ninth day of February one thousand seven hundred and ninety between Robert Alexander of the County of Fairfax of the one part and David Stuart of the same County of the other part Witnesseth That whereas John Parke Custis in his life time purchased of the said Robert Alexander Two tracts of land in the County of Fairfax, one of them laying on the river Potomac, being the tract of land on which the said David Stuart now lives, the other laying between the lines commonly called North and the North six supposed to contain between two and three hundred acres. For securing the purchase money of the said first mentioned tract the said John Parke Custis made and executed a mortgage thereof unto the said Robert Alexander, and for the payment of the last mentioned tract gave his bond to the said Robert Alexander—Respecting which mortgage a suit is now depending in the High Court of Chancery—and the said David Stuart being authorized by act of assembly to compromise all disputes with the said Robert Alexander relative to the aforesaid mortgage and purchase of said lands with the consent and approbation of George Washington Esquire, President of the United States.
“The said David Stuart doth agree with the said Robert Alexander that if the said George Washington shall approve thereof he will put the said Robert Alexander in possession of the aforesaid Tracts of land on or before the 25 day of December next, and will pay him the sum of six hundred pounds on or before the 20 day of June next—and moreover will pay unto the said Robert Alexander whatsoever sum any five Gentlemen, two of them to be named by the said Robert Alexander and two of them by the said David Stuart and the other to be named by the persons so appointed shall adjudge and determine the said Alexander ought to receive for the rents of the said first mentioned tract of land from the time he has been out of possession of the said Tract, on or before the 10 day of February next ensuing. And the said Robert Alexander on his part doth agree with the said David Stuart that he will release the Heirs, Executors, and Administrators of the said John Parke Custis from all claims and demands against them or any of them in consequence of the aforesaid mortgage and bond. Provided always that this agreement shall not be binding on either of the Parties to these presents unless the said George Washington shall approve of this agreement and compromise, nor unless the Fee Simple Estate in the aforesaid Tracts of land can be vested in the said Robert Alexander or his Heirs by act of Assembly or otherwise.
“In witness whereof the Parties to these Presents have hereunto interchangeably set their hands and affixed their seals the day and year first before written” (DLC:GW).
Following Stuart’s and Alexander’s signatures, the following statement signed by GW appears: “Now be it known to all whom it may concern that under the best evidence I have of the circumstances, and from the fullest consideration I am able to bestow on them my opinion is that the agreement ought to be ratified, and do accordingly under my hand and seal consent to the same this 10 day of April 1790.”
2. Probably John Marshall who was practicing law in Richmond at this time.
3. At the bottom of the agreement between Stuart and Alexander, GW appended and signed the following note: “The original of the enclosed was sent by Doctr Stuarts directions (who when he wrote was about to set out for Williamsburg) to Mr Lund Washington, who was authorised by him to ascertain the rents and to carry the bargain into effect.”