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WILLIAM A. CARR, APPELLANT, v. SAMUEL H. DUVAL AND OTHERS

January 1, 1840

WILLIAM A. CARR, APPELLANT,
v.
SAMUEL H. DUVAL AND OTHERS, APPELLEES.



ON appeal from the Court of Appeals for the Territory of Florida. The case is fully stated in the opinion of the Court. The cause was argued by Mr. Coxe and Mr. Webster, for the appellant; and by Mr. Jones and Mr. Crittenden, for the appellees.

The opinion of the court was delivered by: Mr. Justice Catron delivered the opinion of the Court.

In October 1825, William Harris, of Montgomery, Alabama, made his will, devising to his two sons, William and Stephen, the tract of land in controversy; lying on Lake Jackson, in Florida. Stephen and William, at their father's death were both minors; and William soon after died, leaving two brothers and three sisters, who are his heirs; and two of whom were infants when this bill was filed, and two of them married women. The land was unimproved and undivided. In the fall of 1835, William A. Carr, the complainant desired to purchase the land, and applied to Stephen W. Harris for the purpose, by letter; he Carr, residing in Georgia. The letter of Carr, opening the correspondence, is not in the record, but the answer to it is sufficiently explanatory. The answer is dated August 17th, 1835; in which Stephen W. Harris says, his father left the land to his young brother and himself, that his brother had died long since, and he had just come of age, and was entitled to half the land, which could be divided at any time; 'and my half,' says he, 'is for sale, but it has first to be divided; my price for that is ten dollars per acre.' 'The remaining half is owned by the brother and sisters of said brother, and I believe they are willing to sell, and their price, I expect, is ten dollars. Before any part of the land, short of the whole tract could be sold, it would first have to be divided; the whole could be sold so, and our price is ten dollars.'

The next letter from Stephen W. Harris to complainant, is dated December 15th, 1835, acknowledging the receipt of one the day before from complainant, requesting to be informed of the quantity of the land. The answer stated it to be two thousand and hundred and thirty-one and one-fourth acres; and proposed to take Carr's offer for it, with interest on the last note, having two years to run.

On January 2d, 1836, Harris acknowledged the receipt of another letter from Carr, dated the 25th December, preceding. 'I have,' says he, 'come to the determination to sell you the land on the terms you mentioned:' and then asks to be informed when, and where they shall meet to make the necessary arrangements.

The letter of Carr of the 25th December, referred to, offers to exchange some lands of his in Georgia, (which, he says, he had previously described,) rated by him at twenty thousand dollars, for the Florida lands, he giving three thousand dollars difference; or, he would make the same offer he had previously done. What this offer was, appears by Harris' letter of the 16th January, 1836; and as this letter is the conclusion of the correspondence, so far as Harris was concerned, and is the principal evidence relied on to establish the agreement, it becomes necessary for the purposes of its proper understanding, and to ascertain the sense in which the parties understood it, to set it forth, together with the answers to it, of the 3d and 19th of February.

'Montgomery, January 16th, 1836.

'MR. WILLIAM A. CARR.

'Sir–Yours of the 12th instant, is just received, and in reply have only to remark, that I will accede to your first proposition, as stated in my last letter: that is, one-third cash, the balance in two equal instalments, with a mortgage on the land the last two payments to be made in cash–and as all the heirs live in the neighbourhood of this place, it will be the only place where we can conveniently meet to close the bargain. I wish to know your decision per return mail, as I have three other offers for the land, and can sell it immediately if you do not wish to take it.'

'Athens, February 3d, 1836.

'MR. STEPHEN W. HARRIS.

'Dear Sir–Yours of the 16th January, I received upon my return from Augusta, and, according to your request, hasten to answer it, and, for answer, say, that I am still as desirous as ever of taking the land, and have considered myself bound to you for the money, and you as equally bound to me for the titles to the land; but as there was in my mind, at least, some doubt to which of my propositions you had acceded, I thought it best to write again, and be definitely informed on that subject, for the reasons stated in my last. It will be out of my power to go to Montgomery, as my family is sick: my wife, who has been confined, took cold, by leaving her room too soon after her confinement, and upon my arrival at home found her quite sick; although better, is still too unwell for me to leave home just at this time; and our Court commencing here next week, I shall have to remain until that is over: then I am compelled, if my wife's health permits, to go immediately to Florida, as you have, no doubt, heard of the distressing situation of the country there in consequence of the Indian hostilities; so you will have to get all the parties interested in the land together, which I suppose you can easily do, as you say they all live in the neighbourhood, and have the titles perfected to me; and in doing so, the titles must be conjointly by all the heirs interested in the land, made and executed; and those who have families, their wives must assign over and relinquish their right of dower to the same; and when it is, that is, the title, properly executed, one of you can carry it or send it to me, or some agent at Tallahassee, and receive the first payment for the same, and my notes for the balance of the purchase money, and the mortgage on the land, which suits me better than personal security; and in order that the business may be more properly executed, yourself and Judge Field had better be in Florida, for I shall require the boundaries of the land to be defined, so that I may know where the land lies, and when I am on my own land; as well as avoid getting on any of my neighbour's land. Will you be pleased to state what are the offers made you, and by whom, as you say in your last letter you 'have three other offers for the land;' be good enough to state explicitly by whom they are made, what is the amount of each offer, and the payments. I ask this as it cannot now make any difference to you, as I consider this matter closed between us; in other words, I consider the trade as made between us, which puts the land entirely out of the market. Any further communication between us will have to be sent to me to Tallahassee, Florida, as the mail communication between this and Montgomery, is so uncertain, that an answer would not reach here until I should be gone to Florida. If you would prefer to remain at home until you know certainly when I would be in Florida, I will write, on my arrival there, to you, and inform you when to meet me or go on there; the latter plan will, perhaps, be more desirable to you. I must here inquire if any part of this tract has been taken off or sold to any person, as I have understood by some it contained two thousand three hundred, and by others, two thousand four hundred acres; but you always told me in our correspondence you would not divide it. Shall I hear from you at Tallahassee, as an answer would reach me there by the time I reach there?'

'Macon, February 19th, 1836.

'MR. STEPHEN W. HARRIS.

'Dear Sir–You will perceive, by the date of my letter, I am thus far on my way to Florida, where, if no accident prevents, I shall reach there in the course of five days more, where I hope to see you and have our business brought to completion, where I can pay you the first payment, most of which I have had for some time, and take a title to the land. I have been delayed starting as early as contemplated, from circumstances entirely beyond my control; but soon, now, I hope, I shall be able to comply, on my part, and hope, ere this, you have received my last letter, and had the title completed according to directions, viz., to have all the heirs interested in the land to join ...


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