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2d Session. S

No. 32.

FREDERICK GRIFFING.
[To accompany bill H. R. No. 682.]

JANUARY 26, 1855.

Mr. F. P. STANTON, from the Committee on the Judiciary, made the

following

REPORT,

The Committee on the Judiciary, to whom was referred the memorial of

Frederick Griffing, having had the same under consideration, submit the following report :

The facts in this case are fully and correctly stated in the papers appended, being the statement of the memorialist and the explanations of the Navy Department. The only question for the consideration of the committee, is, whether upon the agreement made by the Secretary of the Navy with Mr. Griffing before the passage of the act of 3d August, 1847, the charges levied by the city of Brooklyn upon the property agreed to be sold, ought to fall upon the government or upon the memorialist.

It is true, the Secretary of the Navy had no power to contract for the purchase of the property in question, and his agreement was conditional, depending upon the appropriation subsequently made by Congress. But, at the same time, it must be admitted that the property was important to the government, and the conditional arrangement pru ent and proper on the part of the Secretary. It is conceded, also, that the ground purchased is fully worth the amount which will be paid, even if the charges levied by the city of Brooklyn should be assumed by the United States.

If this contract had been made between two individuals for the unconditional sale of real estate to be perfected at a future day, there woull be no difficulty in determining which party would be bound to sustain the burden imposed in this case. The authorities are clear and uniform, to the effect that the purchaser is considered the owner in equity, and must bear any loss which accrues subsequently to the agreement, if such loss be not in consequence of any act of the vendor.

“Equity looks upon that as done which is agreed to be done.”Craig vs. Leslie, 3 Wheaton 577-8; 1 Story Eq. sec. 649.

A purchaser before conveyance is in equity owner of the estate almost to every purpose. If before conveyance a house should be burnt down, the loss would be his. If any acquisitions, as by lives

dropping, should accrue, the profit would be his.”—Rawlins vs. Burgis, 2 Ves. and Reames 386.

“A vendee being equitable owner of the estate from the time of the contract for sale, must pay the consideration for it, although the estate itself should be destroyed between the agreement and the conveyance,”' &c., &c.—Engden on Vendors, p. 205-6; Paine vs. Meller, 6 Vesey 349, and notes ; 2 Story's Equity, sec. 790; 2 Story's Equity, sec. 740; Carmel vs. Buchlee, 2 P. Wms. 243; 3 Kent's Com. 466.

One of two innocent parties mast lose the amount of thirty thousand dollars, levied upon this property by the city of Brooklyn, after the agreement had been made between the memorialist and the Secretary. It it had been a valid and unconditional contract, it is clear from the authorities quoted, the government would be bound for the assessment. The Secretary was not authorized by any existing law to make any such agreement, and it may therefore be said there was no legal contract in existence. This position cannot be denied. But on the other hand, inasmuch as the Secretary asked of Congress the necessary appropriation, and Congress granted it, for the purpose of carrying out this very agreement, it would appear to be fair and equitable to consider the agreement as ratified and approved from the beginning. In this view of the subject good conscience would require the government to assume the payment of the amount of the Brooklyn assessment.

This conclusion is strengthened in its equitable aspect, by the consideration, that the charges in question are levied for the benefit of the property itself. It is true, the avenues ordered to be opened through the land, were rather an inconvenience to the United States; but, in principle and in general effect, they would have operated to the benefit of the owner of the property. If Mr. Griffing should be forced to pay the assessment, he would be deprived of the advantage which he would undoubtedly Lave enjoyed from this expenditure if he had continued to hold the land. It is therefore plain, that, although the United States may not be in a position to profit by the improvement resulting from this change, it would be a great hardship and manifestly inequitable to force the payment from the memorialist. The committee, therefore, report a bill for his relief.

NAVY DEPARTMENT,

January 25, 1854. Sir: In reply to the inquiries contained in your letter of the 20th instant, touching the memorial of Frederick Griffing enclosed therewith, I have the honor to transmit herewith the report of the chief of the Bureau of Navy Yards and Docks, setting forth, as the department thinks, the facts in the case.

The memorial of Frederick Griffing is returned, and accompanies this letter and the report referred to. I have the honor to be, very respectfully, your obedient servant,

J. C. DOBBIN. Hon. FRED. P. STANTON,

Chairman of the Committee on the Judiciary, Ho. of Reps.

BUREAU OF YARDS AND Docks,

January 25, 1854. SIR: I have the honor to acknowledge the reference to this bureau of a communication from the honorable F. P. Stanton, chairman of the Committee on the Judiciary of the House of Representatives, dated the 20th instant, enclosing the memorial to Congress of Frederick Griffing, esq., praying for relief by payment of money reserved by the United States to remove certain incumbrances upon land conveyed to the United States by said Griffing, which reservation the said Griffing avers should not in law or justice have been withheld from him; and requesting to know from the Navy Department whether the facts stated in said memorial are accurate and true; and desiring to know if a contract was concluded on the basis of the letter of the Secretary of the Navy, dated the 11th of December, 1847; and, if such contract was made conditioned upon the appropriation, at what precise date it was concluded.

In reply, I have the honor to state succinctly, that, so far as is known to me, there was no other contract or bargain entered into or made between the Secretary of the Navy and Mr. Griffing than is contained in the said letter from the Secretary of the Navy to him, dated December 11, 1847, which is correctly recited in said memorial, and his acceptance of the terms therein proposed.

In pursuance of this arrangement the Secretary of the Navy asked of Congress authority to make the purchase as proposed, and an appropriation of $285,000 to enable the department to consummate it. The act of Congress of August 3, 1848, making appropriation for the year ending 30th June, 1849, contains the following clause: “For the purchase by the Secretary of the Navy of the land, above and under water, bounded by Flusing avenue, in the city of Brooklyn, in the State of New York, the United States navy-yard, hospital grounds, and the Wallabout bay to the channel, two hundred and eighty-five thousand dollars: Provided, That no part of said sum of money shall be applied to the payment of the purchase money until a good and perfect title is secured to the United States for the said land and its appurtenances.'

After the passage of the above act the Secretary of the Navy, on the 9th of August, informed Mr. Griffing that he was ready to consummate the said purchase on the part of the United States, when it appeared there were yet incumbrances upon the land which Mr. Griffing had not removed; and among others one for improvements made by the city of Brooklyn, in the construction of streets or avenues, amounting to some $28,000. These assessments by the city had been levied between the dates of Mr. Griffing's acceptance of the Secretary's proposition of December 11, 1847, and the passage of the above act.

On the Secretary's demurring to make payment until all the incumbrances should be removed, the Attorney General, as I understood, decided it to be safe for the department to make payment in part on receiving a deed of warranty from Mr. Griffing and wife, retaining sufficient to indemnify the government against loss, and enable it to remove all legal liens upon the land should Mr. Griffing

fail to do so. Accordingly, under this arrangement, Mr. Griffin g delivered a deed of warranty, and on the 15th of August, 1848, he received $150,000 in part payment, and various sums thereafter as incumbrances were removed, as certified by the district attorney, until, on the 10th of October, 1848, the last incumbrance (except that assessed by the city of Brooklyn) was removed, and the final payment, (except the $30,000 reserved,) amounting to $17,417 53, was made to Mr. Griffing.

The department retained the $30,000 of the purchase money in its hands until Mr. Griffing could have an opportunity of testing the legality of the said assessment made by the city of Brooklyn by a suit at law, provided it should be tried as soon as practicable, the Secretary requiring a bond in the penal sum of $5,000 to indemnify the United States against any liability or loss beyond the $30,000 retained, should the case be decided against Mr. Griffing and the sum retained be insufficient to meet the demands, including

costs, &c. A bond was accordingly given, and a suit commenced and carried to the court of appeals, where it was decided against Mr. Griffing, when the Secretary, upon the demand of the city authorities of Brooklyn, paid over the $30,000 to them ; which sum, however, was not sufficient to pay the debt and cost, and the balance, so far as I know, yet remains unpaid.

The claim of Mr. Griffing is predicated upon the contingent bargain as set forth in the said letter of the Secretary of the Navy to him, dated December 11, 1847, and accepted by him. The question which seems to present itself is, whether the assessments by the city of Brooklyn were laid upon the property of the United States by virtue of the contingent proposition of the Secretary and the acceptance of of it by Mr. Griffing, having been levied after the acceptance of the Secretary's proposition, or, upon Griffing's property, before the conveyance was actually executed.

The papers are herewith returned.
I have the honor to be, very respectfully, your obedient servant,

JOS. SMITH. Hon. JAMES C. DOBBIN,

Secretary of the Navy.

To the honorable the Senate and House of Representatives of the United

States in Congress assembled:

The petition of Frederick Griffing, of Brooklyn, in the county of Kings, and State of New York, respectfully represents:

That on the 19th of September, A. D. 1846, your petitioner stated, by letter to the Secretary of the Navy, that “having been for some time in treaty with the owners for the purchase of the property lying between the naval hospital and navy yard, in the city of Brooklyn, with a view of selling it to the government; and not wishing to incur so heavy a responsibility without having some guarantee that they would take it at a given sum,” he desired the views of the Secretary

on the subject. That after some further negotiations with the Secretary of the Navy, your petitioner again wrote him, under date of November 16, 1847, that he had entered into written contracts for the purchase of said lands, and was then prepared to make a sale of the same to the government, although, as he therein stated, he had not yet received of the owners their deeds of the land. That on the 11th of December, 1847, the said Secretary addressed to your petitioner the following letter:

“NAVY DEPARTMENT,

Washington, December 11, 1847. "SIR: Referring to your letter of the 16th November last, and to the plan which accompanied it, and by the recommendation of the chief of the Bureau of Yards and Docks, I am willing to recommend to Congress an appropriation of two hundred and eighty-five thousand dollars, for the purchase of the land described in that letter and plan, situated in Brooklyn, New York, bounded north by the Wallabout channel, south by Flushing avenue, east by the grounds of the United States naval hospital, and west by the grounds of the United States nary yard, understanding that for this sum you will make a perfect title, satisfactory to the United States district attorney, New York, to the whole of the premises thus described, including the rights of the riparian owners to the flats in the bay; and that no right is to be reserved to you, except that of taking off the buildings which are now on the property and constructing a sewer under ground through the western lot of said land, from Flushing avenue to the channel. Upon these terms, if you assent to them, I will complete the purchase as soon as the necessary appropriation shall be made by Congress; and that no time may be lost in bringing the subject to the attention of the proper committees, I will thank you to inform me, without delay, whether you will accede to this proposal. Should you do so, and Congress should neglect or fail to make the appropriation for the purpose at its present session, it is not expected that you will be further bound by your agreement. “Very respectfully yours,

“J. Y. MASON. "FREDERICK GRIFFING, Esq., Washington."

That on receipt of the letter above set forth, your petitioner forthwith came to Washington, and, at the Navy Department, accepted, in writing, the proposition contained in said letter, and so bound himself to convey said land to the government, at the price stipulated therein. That Congress did make the appropriation asked for by the Secretary for the purchase of said land, by act of August 3, 1848. That your petitioner, relying on said contract with the government, closed his negotiations with the owners of said land, and received deeds of all the numerous titles, and was ready to convey to the government "a perfect title, satisfactory to the United States district attorney," as the title stood at the execution of said contract, in December, 1847.

That after said contract was executed as aforesaid, an assessment

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