Washington 6th Febry 1797
In the course of business, a circumstance has occurred, which appears to us of sufficient importance to justify a reference to the executive. Messrs Morris & Nicholson having made payments to an amount sufficient to entitle them to a conveyance of the property sold by them to Mr Law, requested the Commissrs to convey the same to him. Upon a view of the Several Instruments of writing executed by our predecessors, & Morris, Greenleaf and Nicholson; we were of opinion, that Mr Law was not entitled to a Deed, but on condition of building One house for every three Lots, agreeably to a Stipulation in the Contract of the Commissioners with Morris & Greenleaf (Enclosure A) and to a similar stipulation in the agreements of Mr Law with Morris, Greenleaf & Nicholson (B)—Mr Law would not accept of such a Deed, and has obtained opinions of Counsel to justify his refusal. Could we have conceded to those opinions, we certainly should not add to that pressure of business which you are obliged to sustain; but after viewing the Subject in every point of light, and giving it the most mature consideration, we cannot think otherwise than that we have a right to insist on making the erection of those buildings a condition in the Deed; in fact, we see no other means left, to Secure that desireable event—We transmit to you all the writings in the case, and expect, that with the advice of counsel, you will determine, as well the legality of our opinion, as the expediency or inexpediency of carrying it strictly, into effect, should it be thought well founded in point of Law.
By an article of agreement, dated 24th Decr 1793, Robt Morris and James Greenleaf purchased of the Commissioners Six thousand Lots in the City of Washington, for which, they agreed to pay £30 Maryland currency, per Lot; at seven equal annual payments, without Interest; the first payment to be made on the first day of May next ensuing the date of the Said article; and to build and erect Yearly on some part of the said Lots, twenty brick houses, of the dimensions in the Said article described, and that neither the Said Robert Morris and James Greenleaf or their heirs, would sell or contract for the Sale of any of the said Lots, before the first day of January 1796, but upon the express condition, that one such house as above described should be built, and erected on every third Lot, at the least, within four years after such Sale or contract for Sale—Among various other clauses and provisions, in the Said article contained, it is declared, that the Covenants and agreements on the part of the Said Robert Morris and James Greenleaf, and the true and full performance of them, are the terms and conditions of the sale of the Said 6000 Lots—Upon the 24th April 1794, the Commissrs executed the agreement C, and 4th May thereafter, Morris, Greenleaf and Nicholson executed the Bond D—Had the original agreement remained without alteration; it is evident that Morris & Greenleaf could not have obtained a title to any one of the Six thousand Lots, till the price of the whole should be paid, One hundred and forty houses built, and obligations taken for the erection of one house for every three Lots, which they might Sell previous to 1796—Equally clear we take it to be, that a purchaser under them, previous to 1796, could never be entitled to an unconditional conveyance, without first building, agreeably to Morris & Greenleaf’s Contract, unless some particular circumstance should relieve such purchaser from the obligation to build; if he has given an obligation to build, it became an express Contract on his part, though nominally with Morris & Greenleaf, yet, in effect, for the use of the public, he consequently could not demand a compliance on the part of the public, while he failed to fulfil his own part: if, on the other hand, Morris & Greenleaf sold, without taking an obligation to build, the covenants and agreements on their part, would be broken; they would not, themselves be entitled to a conveyance, and of course, could not confer that right on another—We have then to consider, how far the case is altered by the agreement of April and the Bond of May 1794, above alluded to: We conceive this transaction amounts to no more than this; that instead of vesting the Titles of the whole number of Lots Sold, on the full completion of the agreement on the part of Morris & Greenleaf, by the payment of the whole money the erection of 140 houses, and the stipulating with purchasers for the erection of one house for every three Lots, purchased, or contracted for prior to January 1796, partial conveyances should be made, in consequence of partial payments, and that the Bond of Morris, Greenleaf and Nicholson should be considered as a payment for One thousand Lots, and accepted, as a security for the erection of One hundred and forty houses, in lieu of their actual erection; but it provided no security for the erection of houses, by purchasers, except that of inserting it as a condition in the Deed. The responsibility of Morris, Greenleaf & Nicholson is indeed mentioned, as an alternative, and it is contended by Mr Law, that the option lies with them—It appears to us a very extraordinary construction; that in a case of such magnitude, men should be the judges of their own responsibility; indeed the impropriety of such construction cannot be more clearly exposed, than by considering the circumstances which occur in the present case, the situation in which those gentlemen were, at the time of the Contract, and that in which they now are. But, to do away all doubt, if doubts could arise, Morris, Greenleaf & Nicholson never rendered themselves responsible for the buidings to be erected by purchasers: their Bond relates, only, to the 140 houses to be erected under their own Contract; why their responsibility, with respect to buildings by purchasers is mentioned, we know not, the inaccuracy of the writing best accounts for it—We are now called upon to grant an unconditional Deed, in a case, where we have above shown, a purchaser could not be entitled to it under the original Contract; and without the security contemplated by the second Contract—It was not the President’s intention (enclosure E) that the hold, which retaining the legal title to the property afforded, should be abandoned, without unquestionable security for the completion of the Contract, neither is it to be presumed that the Commissioners acted on different principles—Shall, then, the right of the public, to enforce the execution of the building contracts of purchasers (a principal consideration in the Sale to Morris & Greenleaf) to be done away by a forced construction? It is also contended, that Morris & Greenleaf, being permitted to dispose of any of their Lots, at their will, gives a right to dispose of them, in what manner they please; of course, to transfer them, in fee-Simple, free from all conditions—If that is a just construction, what need was there of further provisions in the agreement? this was all that could be granted, all they could ask; but we understand this clause differently, we consider it merely as a general declaration, that their right to sell should extend to all their City Lots, without restriction—But the terms on which the Commissioners are to convey to purchasers, are explained in the subsequent part of that agreement.
Mr Law states, that he has Morris, Greenleaf & Nicholson’s Bond for making to him an indefeasible estate, in fee-Simple, in the property purchased of them and thence infers, that he is not bound to accept a title on any other terms—It does not belong to us to pass opinions with respect to the transactions of those gentlemen, so far as they only are concerned, but we consider it as a very clear point, that Morris & Greenleaf having sold or contracted for the Sale of Lots, prior to January 1796, on the express condition: that the purchaser should erect the buildings required by their contract with the Commissioners, of December 1793, although they may have inserted in their contract with the purchaser, covenants with which they can[not] comply, and thereby Subjected themselves to damages; at his instance, yet, the right of the public to the erection of the buildings, remains umimpaired—Mr Law alledges, that the four Years within which he is to erect the Stipulated buildings, ought to be computed from the time he may receive an unconditional fee-Simple estate, in the property—and not from the date of his Contract—On this point, it is observable, that by the Bond of Morris, Greenleaf & Nicholson to Mr Law, the conveyance was to be made within ninety days from the date, vizt 3rd Decr 1794, and that Mr Law, after the expiration, of ninety days—vizt 10th March 1795, agreed to take a Mortgage (which he yet holds) for securing the Title to him, at some future period; that title he may have whenever those buildings are erected: what ground, then, does this transaction afford for procrastination? We are sensible that a strict adherence to the agreement of April 1794 with respect to buildings, would be attended with inconveniencies Similar to those early foreseen with respect to the original Contract, with Morris & Greenleaf, the whole property depending on the erection of the whole number of buildings; We therefore intimated to Mr Law, that we would agree to convey three Lots for every house which he should erect; we also consented to compute the four Years, in which, the buildings were to be erected, from the present tim[e.] Indeed, we would chearfully agree to any arangements for the ease and accommodation of Mr Law, consistent with that security for the accomplishment of the main object, which the present State of things affords—those above stated, alone, have occurred to us, Mr Law does not approve of them, neither has he proposed any other—We consider private buildings of equal importance with the public; we therefore cannot consent to a measure, which, we conceive, will do away every obligation on purchasers to erect them—The papers enclosed, contain all the evidence in the case, and we submit the result to your determination. We are, Sir &c.
DNA: RG 42--Records of the Commissioners for the District of Columbia, Letters Sent.