from $58.87, making the sum to which he would be entitled, upon this principal of construction, about $153.35, a sum considerably greater than the whole lot originally sold for, and very nearly equal to the amount for which it was sold, at the re-sale, on the day its value is directed to be ascertained. In short, this principle of settlement would be in effect to constitute the re-sale an original sale, so far as the interests of the state are concerned, and to give to Mr. McLean the interest upon the original purchase money, up to the time of the re-sale, with the benefit of a six per cent investment for the payments as they were made. But either of these constructions will prove to be far more favora ble for the interest of the state, than the one for which Mr. McLean contends. He has paid, and has become obligated to pay, $400 for his father's interest in this lot, as would appear from the testimony he has adduced to the Board, and this payment has remained upon interest, as he contends, from the 27th July, 1824. He has also paid the $35 into the treasury, as before mentioned; and this payment has been on interest from the 16th June, 1825, the time when it was made. These payments, with the interest upon each, at six per cent, from the dates above given, will now amount to about $602, Suppose then that the proof offered by Mr. McLean is to be taken as to the actual value of the lot, on the 16th June, 1825. That proof shows it to have been worth, on that day, as we have before seen, $617.50. His rule of constructing the act, would require that the sum due to the state upon the lot, on the 16th June, 1825, $157.29, should be taken from the actual value of the lot, as shown by his proof, $617,50, and that the balance, $460.21, that being less than the payments he has proved, should be paid to him. This may be the construction which the legislature designed, but the commissioners are unwilling to believe it is, inasmuch as the effect of it will not only be to give Mr. McLean all the money the state have received, or will receive for this lot, but from two to three times that amount. Yet, if such was the design of the legislature, in passing the law in question, the commissioners can have no interest against carrying it into effect, and their sole object in making this communication, is respectfully to ask of the legislature, which of these, or what other construction they shall put upon the law in question, when such signification will be most readily and most cheerfully obeyed, One other question may arise upon the face of the proofs exhibited by Mr. McLean, and it is therefore proper that the attention of the legislature should be directed to it. It has been seen, that of the $400 claimed to have been paid by Mr. McLean, for the interest of his father in this lot, but $41.50 have been actually paid, the residue of the said amount, and interest, remaining secured by his promissory note. The words of the act, are "such sum shall not in any case exceed the amount of money actually paid by said John C. McLean, for and on account of said lot of land, with interest thereon, at the rate of six per cent per annum." The commissioners may have found a difficulty in the construction of this law, which does not necessarily pertain to the subject, because they have not considered that the re-sale of this lot was the fault of the state, or any of its public officers. That subject has been before them upon a question between McLean and the assignee of Simpson, as to the person entitled to a patent for the lot, upon making full payment. That question was fully examined, and argued by counsel before them, and it appearing that the payment by McLean was not made until the day of the sale, and that the receipt for that payment was not duly entered in the books of the Comptroller's office at all, but came into those books by comparison of them with the books of the Treasurer, at the close of the month; the Board unanimously determined that the re-sale was regular, and that the purchaser at that sale was entitled to his patent upon paying in full for the lot. The resolution of the Board, together with a report of the facts, in this case, made by the Surveyor-General, will be found in document 87, of the documents of the last session. The brief notes of the evidence taken before the Board, and hereinbefore referred to, are annexed to this communication, together with copies of the affidavits, produced and filed with the Board. SILAS WRIGHT, JR. Comptroller. EDW'D P. LIVINGSTON, Lt. Governor. Dated Albany, 28th January, 1831. DOCUMENTS. STATE OF NEW-YORK, City and County of Albany, S John Simpson, being duly sworn, deposeth and saith, that he is well acquainted with lot number seventy-four, of the tract of land called the Peru Bay tract, on the west side of Lake Champlain, mentioned and described in a land certificate, executed on the tenth day of March, in the year of our Lord one thousand eight hundred and fourteen, by Simeon De Witt, Surveyor-General of the State of New-York, to Harmanus C. Wendell, and which said certificate has been transferred by said Harmanus C. Wendell to Thomas McLean, and by Thomas McLean to John C. McLean, and that he, this deponent, was well acquainted with the said lot of land, in the month of June, in the year of our Lord one thousand eight hundred and twentyfive, and that it was well worth, at that time, in the estimation of this deponent, three dollars and fifty cents per acre; and that by reason of subsequent improvements in the roads in its vicinity, the said lot is now worth five dollars per acre, exclusive of the improvements on the premises by the present occupant; all which is true according to this deponent's best judgment, knowledge and belief. And further this deponent saith not. JOHN SIMPSON. Sworn this 26th day of January, 1830, before me, J. W. PADDOCK, Justice of the Peace. STATE OF NEW-YORK, City and County of Albany, John C. McLean, the person named in the above affidavit, being duly sworn, saith, that he purchased of Thomas McLean the said lot number seventy-four, in the above affidavit mentioned, on the twenty-seventh day of July, one thousand eight hundred and twenty-four, for the sum of four hundred dollars, and in addition thereto, was to pay the state the sum due it, upon the original sale of the said lot; and this deponent afterwards contracted to sell the said lot, to one William Spafford, for the sum of four hundred and sixty-nine dollars, exclusive of the said sum due to the state. JOHN C. McLEAN. Sworn to this 3d day of February, 1830, before me, J. H. WENDELL, Commissioners of the Land-Office, September 11th, 1830. Notes of testimony taken on the application of John C. McLean, under the act, chap. 85, Laws of 1830. Affidavit of John Simpson read, subject to objection that witness should have been produced. Isaac Huestis, sworn. Acquainted with lot 74, Peru Bay tract; knew lot before June, 1825; had examined it in reference to its value. In June, 1825, was worth $3.50 per acre; dont recollect number of acres particularly. Cross examined. No body then lived on the lot; had been 20 or 30 acres cleared; was an oldish mill standing on lot. In 1814, man lived on lot by name Benjamin Boardman; don't know when he left; but lot was afterwards vacant; cant say it was occupied after 1814, until some years after. Was on it in 1824; not then occupied. Old clearing appeared as though there had been crops; not much if any fences; grown up to brush. In 1814, mill not in use; dont know how long had been out of use; never used since. In 1824, mill of little or no value; frame might be worth a little; and so of remnant of old dam. Was it worth more than if entirely wild? Can't answer that exactly. Can't say whether worth more for improvements or not. Knew about the value of lands in a few miles; settled within a mile or two; is a settlement within half a mile I think. Can't say what adjoining wild lots are worth; know the value of lands better 4 or 5 miles off, where I lived; there worth from 3 to 5 dollars. I live in the neighborhood of Maule's patent. I think 74 was valuable for water privilege; dont know as otherwise more valuable than lots adjoining; soil and timber about the same. Don't know the name of creek; have understood it was durable stream, but know nothing about it. Don't know why mill abandoned; heard was a difficulty about it, and irons carried off. Don't know whether this brook had other mill privileges. I judge of value in reference to prices we paid for lands in Maule's patent. Cant say I formed any judgment of value in 1825, but judge of it now from recollection. Peru Bay tract in Willsborough, this lot about 4 miles from Lake Champlain. Saw stream in March, and have seen it at different times. Had been an old road, and been travelled; but was not used when I was there. Travelled road then passed about 24 miles from this lot. Timber, pine, hemlock and spruce, and some hard wood. One man settled on the old road leading on to lot, about half a mile from lot. Thomas McLean, sworn. I once owned this lot; sold it to John C. McLean in July, 1824; he gave me $400, and was to pay the state. I had had some acquaintance with the lot; had owned it with another man; had been on the lot, in all, two or three times; can't say which. Bromley & Stearns built a mill; heard was quarrel between them, and Stearns carried awav irons. |