James F. Perry to Stephen F. Austin, 11-05-1826

Summary: Title to Mine a Burton tract. Biographical.

Potosi Mo Nov 5th 1826

Mesrs S. F and J. B Austin

Gentln You have several times expresed a wish to know the prospect of recovering the Mine A Burton tract of Land. I long since spoke to John Scott and his partner a Mr Alen on the Subject beleaving they could give as good an oppinion on the subject as any of the atternies at the bar they being at that time imployed in a case R Price vs Marten . . . and W M and S Perry where the tital of this tract of land was to be tryed. They [delayed] giving me there op- penion untill there would be a desition in that [case] which has been had, and a few days since, they handed me there opinion in writing, a copy of which will give you more information on the Subject than any thing I can say which is as follows

We have considered the proposetion submitted for our examination with due deliberation. In whom the title of the Mine A Burton Tract of Land is, and whether the heirs of Austin could under any circumstances recover the property.

We are not perfectly satisfyed, that the title to the Mine A Burton tract of Land from the Spanish Government to Moses Austin was complete, But such Title as he had seems to have been disposed of either by the process of Law, or by his own consent. It appears that Moses Austin stood actually Indebted to the bank of St Louis in a Large Sum of money, to secure the payment of which he mortgaged a portion of the Mine A Burton tract of Land the Bank not satisfied to close the mortgage alone to secure the debt proceded on Austins Notes, obtained a Judgement issued execution and Sold the whole of M Austin's Interest to the whole of the Mine A Burton Tract the Bank of St Louis by there agent Become the purchasers, and a deed was executed by the Sheriff for the same, this deed to the Bank by the Sheriff though Incomplete for want of proper acknowledgment and Seal we think gave to the Bank an Equitable title to the property, which equitable title the Bank in circuitous manner pretended to convey to R H Price. It appears that this Incomplete title acquired by the Bank under the Sheriffs deed was Subsequently Ratified by Moses Austin in his settlement with the Bank and whether this Ratifecation amounted to a new deed or a new acknowledgement of the sale under the Sheriff makes no difference so far as the equitable Interest created in the Bank was concerned. If the amount of money for which the special tract of Land was Mortgaged for [was] paid Independent of the General sale of the whole property, then the Heirs of Moses Austin would be entitled to the tract that was mortgaged, if the debt due by Austin to the Bank was satisfied it was done by the sale of the Mine A Burton Tract. If not satisfied the debt still exists against the Estate of Austin. It appears that Price for and in consideration of this property Released the Bank of St Louis from a large debt due by the bank of St Louis to the Bank of Edwardsville and became liable to the Bank of Edwardsville for the debt due the Bank of Edwardsville from the Bank of St Louis, the whole of the proceedings appear to have had much notoriety. Now if the heirs of Austin were to pursue and acquire that property they would appear to be in the situation of purchasers with notice of the Equitable title of the Bank of St Louis or of Price under the Bank, heirs can not inherit while their are debts due by the Estate and if the heirs were to acquire this property we think they would take it subject to either the Bank debt if unsatisfied or subject to the equitable title of the Bank if the title still remains in the Bank or the equitable title of Price under the Bank. If Price has regularly acquired an equitable title it is then a question of some moment if the property is worth pursuing under those clogs, which we consider incident to success the debt with the accumalated Interest will be great nor are we sure that the proceeds of the property would be decreed equal to the accruing Interest of the debt

We have not been favoured with a view of the second opinion of the Supreme Court as regards this title but the Law of the Land protects Equitable titles against heirs or purchasers with Notice and are inclined to think to pursue this case would be incuring Cost expense and trouble that even success would not remunerate

Signed John Scott and Beverly Allin

Oct 23d 1826

from the above oppenion there is but a poor prospect of ever receving anything from that Estate. I have wrote to Edward Bates for his oppinion as he stands now next to the head of the Bar and has been employed in the above mentiond case [he] has had an opertunity of becoming acquanted with the [title] of that property but he has not answered my letter yet. [My] opinion is different from Scott and Allins I will write [of it later ?] We received Stephens letter of 21st August forwarded by [Co1] Matson although that letter was very full We are [sorry] Co1 Matson did not call on us as he could have [given] more minute information than the Bounds of a letter would admit of. Your acquantances in this country are I beleave quite well. You will have heard of the death of Mrs. Wm C Carr and his only son before this reaches you they both died in a short time of each other. Mr Carr is our Circuit Judge he was here not long since he enquired very particularly after you both. Now for Famaly matters We have added since our marage two to our famaly a son and daughter prety well in two years. Stephen is a fine healthy child and Emily Rosannah is a fine girl six weeks old if we keep on as we have begun we will soon have to retreat to the west for land to occupie the rest of the children are all very well. Joel and Austin goes to school and are improving some under Mr Brickey['s] direction though not so fast as I think they might under a better teacher Write to us often as we are allways anxious to hear from you

Jas. F. Perry

[In Margins:] S. your old flame Miss Isabella Hord [has turned] methodist and is going to heaven as fast as possible. Mrs. John [Bri]ckey is dead she died last spring. Abraham Brinker Esq after twelve years electioneering [he has] been elected to the Legislature. Thompson H Ficklin is our other representative and Edward Bates was elected to congress in [the place] of Scott. Scott and Benton are now condi dates for the United States Senate. [It is thought?] by many Scott will oust Benton

Emily is anxious to remove to your country but unless the prospects are very flattering I think it is verry doutfull whether ever we remove there

[Addressed] Co1. Stepehn F Austin San Philip D Austin Rio Brases Provance of Texas

To the Care of Jared Cable Esq Natchetoches