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IN ASSEMBLY,
January 29, 1831.

COMMUNICATION

From the Commissioners of the Land-Office, relative to the duties assigned them in and by the act entitled “An act for the relief of John C. McLean,” passed March 19, 1830.

The commissioners of the land-office, in reference to the discharge of the duties assigned to them in and by the act, entitled “An act for the relief of John C. McLean,” passed March 19, 1830, ask leave to present to the legislature the following

COMMUNICATION.

The first section of the act referred to provides, “that the Treasurer shall pay on the warrant of the Comptroller, to John C. McLean, such sum as the commissioners of the land-office shall ascertain and certify to have been the actual value of lot No. 74, in the Peru Bay tract, in the county of Essex, on the 16th day of June, 1825, deducting therefrom the sum due the state therefor, in full for all claims of the said McLean, in consequence of the sale of the said lot by the Surveyor-General, on the 16th June, 1825.”

The second section of the act provides, that “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 the interest thereon, at the rate of six per cent per annum.”

The difficulty which the commissioners find is in determining what restriction the second section of this act was intended to impose upon the provisions of the first section; or in other words, what payments of McLean were intended to be embraced by the language of [A. No. 72.] 2 - the second section. Some members of the Board entertain the opinion, that the legislature intended by that section only to include in the computation such payments as had been actually made by John C. McLean, into the treasury of the state, “for and on account of the said lot of land.” Others suppose that the intention might have been to include not only the payments which had been made into the treasury, by John C. McLean, but also the payments which had been made by his assignees, and that there should be repaid to him, in case the actual value of the lot should warrant it, the whole sum which had been paid into the treasury, for and on account of the lot, prior to the 16th June, 1825, including the payment of $35 made by John C. McLean, on that day.

Neither of these constructions are adopted by McLean, but he contends that the design of the legislature was, to repay te him the whole amount of money he had actually paid for and on actount of the lot, whether those payments were made into the treasury, or were made to purchase the assignment of the certificate for the lot, or for fences and improvements on the lot, or in any other manner, “on account of the said lot of land.”

Although these differences of opinion, as to the construction of the act, were discovered to exist when the attention of the commissioners was first called to it by the application of Mr. McLean, yet upon his insisting that they should do so, the commissioners on the 11th September last, heard testimony, produced by McLean, both as to the actual value of the lot, on the 16th day of June, 1825, and as to the payments which had been actually made by McLean, for and on account of the lot, according to the construction of the act contended for by him. Two witnesses were produced and examined before the Board, and the affidavits of John Simpson, and John C. McLean himself, were presented and filed.

This proof went entirely to show that the actual value of the lot on the 16th June, 1825, was at least $3.50 per acre; or, there being 176rg acres in the lot, to fix its whole value, on that day, at $617.05. The commissioners did not assume to determine, pursuant to the first section of the act, that this was its value, as they expressly reserved to themselves the examination of the original appraisement of this lot, and the adjoining lands, on file in the Surveyor-General's office, and also of any papers on file in the office of the Secretary of State and Comptroller, which might aid them in ascertaining the actual value of the lot, on the day mentioned in the act; and it was expressly agreed by the counsel, who appeared before the Board in behalf of McLean, that these papers should be considered as then in evidence before the Board for that purpose.

The value of the lot, however, as fixed by this proof, will answer all the purposes of enabling the commissioners to cause themselves to be understood by the legislature for all the objects of this communication.

Among the payments which McLean assumed that he had actually made, “for and on account of this lot of land,” within the meaning of the second section of the act, was one of the amount of $400 to his father, Thomas McLean, alleged to have been made on the 27th July, 1824, as the consideration money for the assignment of the Surveyor-General's certificate for the lot, originally given to Hermanus C. Wendell, and then held by McLean’s father. The proof produced showed that on the 27th July, 1824, John C. McLean had given to his father, Thomas McLean, his promissory note for the said sum of $400, payable with interest on the 1st November, 1828, as the consideration for the assignment of the certificate for this lot, and that on the 8th February, 1830, $16.50, and on the 31st May, 1830, $25 had been paid upon the note, making the payments, actually made upon the note $41.50, at the time the witness was examined, and the residue of the note remained due from John C. McLean.

The facts in relation to this lot are, as shown from the books of the Surveyor-General's and Comptroller’s offices, that the lot was first sold on the 10th March, 1814, to Hermanus C. Wendell, for the sum of $135, that being the sum at which it was valued by the suryeyor’s employed to survey the said Peru Bay tract, and to fix the minimum prices upon the respective lots. Wendell paid the sum of $17, as the first payment upon the lot, and gave his bond for $118, the balance of the purchase money, payable with interest according to the statute. No payment of principal has been since made upon the lot, by any person, but on the contrary, the sum now standing charged upon the lot as principal, is greater than the whole amount of the original consideration money.

The following payments of interest, however, were made prior to the re-sale of the lot, on the 16th June, 1825, for arrears of interest, to wit: On the 17th September, 1818, Thomas McLean paid $28.32; and on the 14th July, 1820, Thomas McLean paid $14.16;

making the whole payments made by Thomas McLean, and the whole payments made upon the lot, after its sale and prior to the 16th June, 1825, $42.48. In the spring of 1825, the Surveyor-General was directed by this Board to advertise and sell this with other lots, in consequence of the non-payment of the interest due thereon, and his sale was accordingly advertised to take place on the 16th day of June, of that year.

The caution is always observed, when re-sales are to be made, of causing the books of the Comptroller’s office to be carefully examined, with the list of the lots to be sold, on the morning of the day on which the sales are to be made, in order, that if payments have been made upon any of the lots, those lots may be stricken from the list, and not exposed for sale. This caution was observed upon this occasion, and those books showed no payment upon this lot. It was therefore not taken from the list, but retained among the lots to be re-sold, and after this examination, the sale was immediately commenced upon at the capitol, all the lots to be sold being offered to the purchasers in the order they stood upon the list.

The amount remaining due upon this lot, after deducting all the payments which had been previously made upon it by any person, was as follows, to wit: principal $118, interest $37.29, costs of advertising $2, in all $157.29. This sum was, by the statute, the minimum price of the lot, at that sale, and unless some person had appeared to bid that sum, it was made the duty of the Surveyor-General to bid in the lot for the state. This sum, however, was bid by George D. Simpson, and no person bidding any greater sum, the lot was struck off to him, as the highest bidder, for exactly the balance due to the state upon it. Where a lot is re-sold, the distinction between principal and interest, due before the re-sale, is merged, and at the time of the re-sale, the whole is made principal. Hence, it happened that after Simpson had made the first payment required by the statute, as it then stood, the amount of principal remaining charged to the lot, and for which he gave his bond, was $138, a sum greater than the whole original purchase money of the lot by $3, and greater than the amount of principal charged upon the lot before the re-sale by $20.

After this sale was made to Simpson, it was found that on the day of that sale, but at what time on that day, or whether before or after the sale of this lot, it is now impossible to ascertain, John C. McLean had paid into the treasury $35, on account of interest in arrear upon

the lot, this being the only payment ever made into the treasury of the state, for or on account of this lot, by John C. McLean. To this $35, thus paid into the treasury, it will be seen the state had no claim, as the sale to Simpson was for the whole amount of principal, interest and costs, due upon the lot on the day of the sale, and while it was not known that this payment was to be made.

These facts will present the reasons and grounds upon which the construction of the act in question, first above mentioned, is contended for, to wit: that the payments actually made by John C. MeLean, for and on account of this lot of land, which are to be considered as embraced within the intent and meaning of the second section of the act, are the payments actually made by him, into the treasury of this state, for and on account of the lot. In other words, it is contended, that it was the meaning and design of the legislature, that this payment of $35, made by him into the treasury on the day the lot was re-sold, should be repaid to him with interest, at the rate of six per cent, from the time of the payment; provided the actual value of the lot, on that day, should be equal to the increased sum remaining charged upon the lot, in consequence of his failure to make the regular payments of interest.

This construction adopted, would have no effect either to benefit or injure the treasury, except the trifling consideration as applied to this case of adopting the principle of paying interest upon moneys erroneously paid into the treasury. The state would finally receive precisely the money for which this lot of land was originally sold, and the interest thereon, and the costs of collecting that interest, and nothing more; and Mr. McLean would have refunded to him the money he paid into the treasury, at too late a period to save his lot from re-sale, with interest thereon, from the time he made the pay- o ment.

Should the second of the above suggested constructions be adopted, the effect would be to pay out of the treasury to Mr. McLean, and that without any equivalent to the state, all of the first payment, made by Mr. Wendell, upon this lot, and all the interest, paid upon the purchase money remaining due, between the date of the original sale of the lot, in March, 1814, and the 16th day of June, 1825, together with interest upon those payments, from the time they were made, to the date of the payment to Mr. McLean. The amount of these payments, including the $35, paid on the day of the re-sale, is $94.48, and the interest upon them, to this date, would be not far

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