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Some years after this I bought of Harmanus C. Wendell, who held the certificate, and paid him $400 for his right. I paid the money to a brother of mine, whom Wendell owed; my brother Francis. I bought after I had seen the lot. Can't tell the year I bought. I took assignment certificate. } The stream, if I had a right idea of it, proceeded from a pond; on this lot was a quite advantageous fall; stream was small; I saw it in March; think it would not carry mill all year. Think it would do business spring and fall. From what acquaintance had with lot, I thought it worth the price I paid; finally thought it worth more; but was worth that ; but not acquainted with the value of land in that quarter. I live 100 miles from it. John C. McLean is my son; he has removed into that quarter of country where lot is; removed before state sold lot; went in fall of 1824. Lived about seventeen miles from the lot; lives there still. Cross examined. Think first time was on the lot, was with Heustis, in 1814 or after. At this time Heustis and I were interested in lot under Bromley. Bromley sold to Samuel Stevens. I then went to Wendell and bought of him. Three or four years after I went on to lot I bought of Wendell. Can't tell how many years before again on lot, but think about the time I bought of Wendell; this last time on it. Don’t recollect being on more than twice; had been nothing done of consequence on lot, between the time of first and second going on to lot; was a smallish kind of house on in; vacant last time I was on the lot; mill not used; think of improvements about as Heustis has stated; house log or frame; cant say which. I was to pay my brother $400; I have not paid it yet; he holds my obligation for it. I did o; with lot while I owned it. I sold to my son; he gave me his obligation and has only paid a part; he has paid but little; in the whole about $50. I gave him a credit of three or four years on interest. Produces note of John C. McLean for $400, dated, July 27, 1824, payable first November, 1828, with interest. Endorsed, February 8, 1830,.............. $16 50 44. May 31, 1830, . . . . . . . . . . . . . . . . . 25 Witness. Those two sums paid in cash. In August last received $50 from my son, but was not stated on what account. I have his note for other matters; paid it in rather hurry, just going home; no application made. Son never did any thing with lot, except payment made to state. In 1824, son sold to Spafford, and he went on to do something to the land. Don't know whether mill ever did any business; there was the appearance that something had been done; probably sawed enough to cover house and mill; I think no more. Last time there, think there was a man on 78; can't say any body was on lots adjoining, except on 78; was little improvement on 75, but no one on it. Can't say whether this stream at any season of the year would carry a mill, except by ponds. Understood was a privilege on lot below, but have no particular knowledge of matter. Had not been up and down stream; had seen it at a point below this lot. I think price of lot from state was about $118. About 176 acres land. Admitted John C. McLean paid $35, June 16, 1825. Reference to Comptroller's and Secretary’s books; those in evidence; also Surveyor-General's office.
Of the Attorney-General on the petition of Zelotes Barker, Rectus Richards and others.
The Attorney-General, to whom was referred by the Assembly the petition of Zelotes Barker, Rectus Richards and others, in relation to certain lands in the county of Delaware,
That actions of ejectment have recently been commenced against the petitioners, and against claimants unknown, for the recovery of about six thousand seven hundred acres of land, in the county of Delaware, upon the ground that the same had escheated to the people of this state upon the death of John G. Leake, late of the city of New-York, deceased, who died seised of the said lands, without making any devise thereof, and leaving no heir capable of inheriting the same. That for the purpose of ascertaining all the necessary facts, and making service of papers, Jabez Bostwick, Esq. who had been the agent of Mr. Leake, in relation to those lands, was employed by the Commissioners of the Land-Office : and through Judge Bostwick and the muniments of the title of Mr. Leake, the Attorney-General has obtained satisfactory information that the lands in question have escheated to the people: that the petitioners severally occupy lots and parcels of the land, some of them under written contracts for the purchase of the land, and others under verbal agreements with the agent of Mr. Leake for permission to occupy and improve, with a view to becoming purchasers; and it was understood that those who entered under such verbal agreements would be at liberty to purchase upon paying the value of the
land, independent of the improvements they should make. That Peter Kemble, one of the petitioners, holding a contract originally given to John Goodwill, has paid the whole purchase money, and would now be entitled to a deed from Mr. Leake, if he were living: that others of the petitioners have paid part of the purchase money, and would be entitled to conveyances upon payment of the residue: and some of the persons holding contracts have made no payments.
The Attorney-General has also learned that the persons against whom suits have been brought, do not design to make any defence: and they ask by their petition, that the lands which they severally possess, may, when recovered, be granted to them by the state, upon just and equitable principles; and it is respectfully submitted that grants of the land ought to be made upon the same principles as they would have been made by Mr. Leake, had he been living. This rule would entitle the petitioner above named, who has paid the whole contract price, to a conveyance without any charge or expense: and others who hold contracts would be entitled to conveyances upon payment of such amount as may still be in arrear: and those who entered under verbal agreements as above mentioned, would be entitled to become purchasers upon payment of the value of the land, independent of improvements made thereon. It has been suggested by Judge Bostwick on behalf of some of the petitioners, that the amount of principal and interest, now due upon their contracts, exceeds the value of the land, and that provision should be made, giving persons holding contracts an election to take the land, upon paying the purchase money in arrear, or at its value independent of improvements: and in favor of such liberal provision, it is said that Mr. Leake at all times dealt very favorably by the occupants of his lands, and that he never deprived any one of his improvements because he was unable to pay the purchase money. The fitness of such a provision in any law to be passed on the subject, belongs to the Legislature. The lots and parcels of land occupied by the petitioners, amount in quantity to about three thousand and fifty acres, and the vacant lots and parcels for the recovery of which proceedings have been instituted against claimants unknown, amount to about three thousand six hundred and fifty acres.
It is provided by the Revised Statutes, (1 R. S. p. 718, § 2,) that escheated lands held by the state, shall be subject to the same trusts to which they would have been subject had they descended; and that the court of chancery may direct the Attorney-General to exe
cute those trusts. Under this provision, some of the occupants might compel conveyances on the fulfilment of their contracts of purchase: but as this remedy would be attended with delay and expense, it seems to be a proper case for special provision by law, directing the Commissioners of the Land-Office, to what classes of persons, and upon what terms to make grants. Such vacant lands as may be recovered will be subject to sale by the Commissioners, in the same manner as the other unappropriated lands belonging to the State.
It has already been mentioned that it had been sound necessary to employ an agent in relation to the lands in question: and the Attorney-General has received satisfactory information that large tracts of land, situated in other counties of the state, have also escheated to the people upon the death of Mr. Leake. Before proceedings can be instituted to recover those lands, it will be necessary to employ one or more agents to ascertain facts in relation to the title, the situation and description of the lands, and to perform various other indispensable services: and it is respectfully suggested that provision ought to be made by law, authorising the Commissioners of the Land-Office to employ such agents as they may deem necessary, in relation to lands which have already escheated, or which may hereafter escheat to the people of this state: and that they audit and direct the payment of a proper allowance to such agents.
It may not be improper to mention, that several lots and buildings in the city of New-York, formerly owned by Mr. Leake, have already been recovered, probably amounting in value to seventy thousand dollars; and it is respectfully submitted, whether the costs of the Attorney-General, where he has already recovered, or may hereafter recover escheated lands, should not be paid by the state, where such costs shall not be paid by any other person. In relation to all the escheated lands in the military tract heretofore recovered, costs were paid by the state ; but it may be doubted whether such payments are now authorised by law.
Attorney-General. January 28th, 1831.