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