U.S. Supreme Court
Brown v. Gilman, 17 U.S. 4 Wheat. 255 255 (1819)
Brown v. Gilman
17 U.S. (4 Wheat.) 255
The scrip or certificate holders in the association called the New England Mississippi Land Company hold their shares under the company itself, as a part of the common capital stock, and are not considered as holding derivatively, and solely as individual sub-purchasers, under the separate original titles of the original purchasers from the Georgia Mississippi Company, so as to be affected by any circumstances of defect in these separate original titles, these titles being in fact now vested in the trustees of the New England Mississippi Company itself as part of its common stock, and not in the individual holders.
The equitable lien of the vendor of land for unpaid purchase money is waived by any act of the parties showing that the lien is not intended to be retained, as by taking separate securities for the purchase money.
An express contract that the lien shall be retained to a specified extent is equivalent to a waiver of the lien to any greater extent.
Where the deed itself remains an escrow until the first payment is made, and is then delivered as the deed of the party, and the vendor consents to rely upon the negotiable notes of the purchaser endorsed by third persons for the residue of the purchase money, this is such a separate security as extinguishes the lien. chanrobles.com-red
This cause was by consent heard upon the bill, answer, and exhibits in the case. The material facts were these:
In the month of January, 1796, sundry persons, and among them William Wetmore, purchased of the agents of certain persons in Georgia called the Georgia Mississippi Company, then in Boston, a tract of land, then in the State of Georgia and now in the Mississippi Territory, estimated to contain 11,380,000 acres, at ten cents per acre, which tract the Georgia Mississippi Company had purchased of the State of Georgia, and had received a grant thereof in due form of law. The conditions of the purchase were that the purchase money should be paid as follows, viz., two cents thereof on or before the first day of May, 1796. one cent more, on or before the first day of October, 1796. two and a half cents more on or before the first day of May, 1797. two and a half cents more on or before the first day of May, 1798, and the remaining two chanrobles.com-red
cents on or before the first day of May, 1799. The whole of the purchase money was to be secured by negotiable notes of the several purchasers, with approved endorsers, to be made payable to Thomas Cumming, President of the Georgia Mississippi Company or order, payable at the Bank of the United States at Philadelphia or at the branch bank at Boston, and to be delivered to the agents upon the execution of the deed of conveyance by them. It was further agreed that the deed, when executed, should be placed in the hands of George R. Minot, Esq., as an escrow, to be delivered over by him to the grantees upon the first payment of two cents, payable in May, 1796, for which first payment, and for that only, the purchasers agreed to hold themselves jointly responsible.
Accordingly, a deed of conveyance was executed by the agents, dated 13 February, 1796, to certain grantees named by the purchasers, to-wit, William Wetmore, Leonard Jarvis, and Henry Newman, in trust for the purchasers, and the same was duly placed in the hands of Mr. Minot as an escrow, and negotiable notes, with approved endorsers, were duly delivered to the agents by all the purchasers for their respective shares of the purchase money. And afterwards, the first payment of two cents having been satisfactorily made to the agents, the said deed was, with their consent, delivered over to the grantees as an absolute deed, and a deed of confirmation thereof was afterwards, in February 1797, duly executed and delivered to the grantees by the Georgia Mississippi Company.
After the purchase and before the delivery of the deed, chanrobles.com-red
the purchasers formed themselves into an association by the name of the New England Mississippi Land Company, and executed sundry articles of agreement, and among other things, therein agreed that the deed of the purchase should be made to Jarvis, Newman and Wetmore, as grantees as above stated; (art. 2d) that they should execute deeds to the several original purchasers for their proportions in the lands, but should retain these deeds, until the purchasers should sign and execute the articles of association, and should also execute a deed of trust, to certain trustees, as provided for in the articles, of such their respective shares in the purchase; (art. 3d) that the several purchasers should execute a deed of trust to Jarvis, Newman, and William Hull, of their respective shares in the purchase to hold to them and the survivor of them in trust, to be disposed of according to the articles; (art. 4th) that the business of the association should be managed by a board of directors, who were to have full power and authority to sell and dispose of the whole or any part of the property of the company, and to pay over to their respective proprietors their proportions of the money received from any and every sale, &c.; (art. 8, 16, 20) that upon receiving a deed from any purchaser, according to the tenor of the articles, the trustees were to give to each proprietor a certificate, in a prescribed form, stating his interest in the trust, and that he should hold it according to the articles of the association, which certificate was recorded in the company's books and was to be "complete evidence to such person of his right in said purchase," and was chanrobles.com-red
to be transferable by endorsement, and upon a record of the transfer in the company's books, the transferee was to be entitled to vote as a member of the company. The share of Mr. Wetmore in the purchase was 900,000 acres. He paid the two cents per acre in cash, and of the notes given by him for the purchase money, $40,000 were paid by Mrs. Sarah Waldo, his endorser, and the residue, $45,000, still remained unpaid. Mr. Wetmore received his certificates from the trustees for his whole purchase, and having sold or conveyed 500,000 acres, he afterwards conveyed the remaining 400,000 acres to Robert Williams, to whom certificates for that amount were duly issued by the trustees, three of which certificates, each for 20,000 acres, duly endorsed by said Williams, came into the plaintiff's, Mrs. Gilman's, hands, for a valuable consideration, and the assignment thereof having been duly recorded in the company's books, she was admitted and had always acted as a member of the company.
From causes well known to the public, the New England Mississippi Land Company never obtained possession of the tract of land so conveyed to them. On 31 March 1814, Congress passed an act entitled, "An act providing for the indemnification of certain claimants of public lands in the Mississippi Territory." By this act and other subsequent acts amending the same, it was provided that the claimants of the lands might file in chanrobles.com-red
the office of the Secretary of State a release of all their claims to the United States and an assignment and transfer to the United States of their claim to any money deposited or paid into the Treasury of Georgia, such release and assignment to take effect on the indemnification of the claimants according to the provisions of the act. Commissioners were to be, and were accordingly, appointed under the act who were authorized to adjudge and determine upon the sufficiency of such releases and assignments and also to
"adjudge and determine upon all controversies arising from such claims so released as aforesaid, which may be found to conflict with, and to be adverse to each other."
And the sum of $1,550,000, to be issued in public stock, was appropriated by the act to indemnify the claimants claiming in the name of or under the Georgia Mississippi Company. The New England Mississippi Land Company duly executed the release and assignment required by the act of Congress, and presented the claims of the whole company before the commissioners. The commissioners awarded the company the sum of $1,083,812 in stock, certificates for which were duly issued, under the act of Congress and received by the treasurer of the company. A further claim was made for the whole amount of the original share of Mr. Wetmore, but the board of commissioners decided that the Georgia Mississippi Company had a lien in equity on the land sold and conveyed to said Wetmore, for the purchase money due and unpaid by said Wetmore, and that the indemnity under the act of Congress should follow that lien and be awarded to said chanrobles.com-red
Georgia Mississippi Company to the amount thereof. And inasmuch as the said Sarah Waldo was the holder of certain certificates issued by said trustees, on account of said Wetmore's original purchase, the commissioners further awarded, that the sum of $40,000 of the purchase money (which had been paid or satisfied by her for said Wetmore, on her endorsement) should be applied first to make good the scrip or certificates so issued to her, and that if there was any surplus after making her scrip or certificates good, such surplus could not be applied to the scrip or certificates held under Robert Williams, who did not become the assignee of the said Wetmore until after the said sum was paid.
And the commissioners further decided that the certificates issued by the trustees on account of any of the original purchasers who failed to make payment of the purchase money to the Georgia Mississippi Company were bad, and that the parties claiming under them must lose their indemnity under the act of Congress. By this award of the commissioners, the claim of the New England Mississippi Land Company for the amount of the share of the plaintiff was completely excluded. But the plaintiff claimed her share of the stock actually received as a proprietor in the New England Mississippi Land Company notwithstanding the award of the commissioners, and to establish this claim the present suit was brought, and in her bill she averred that she was a bona fide purchaser for a valuable consideration without notice of the nonpayment of the purchase money chanrobles.com-red
by Mr. Wetmore, which averment was not denied by the answer. The court below decreed that the complainant was entitled to the relief she claimed, and the cause was brought by appeal to this Court. chanrobles.com-red