Abraham Lincoln to Orville H. Browning, 26 January 18521Springfield, Jany 26. 1852Dear Browning:
The case of Smith vs Gardner is decided for the plaintiff–2 It went off on two points only– First, that defendant's deed from patentee, of Aug[August]: 1820, not having been recorded until after the curing act of 1822, could not take precedence of our deed of Jany[January] 1820 & recorded in June 1820, but defectively; but which defect, the court holds to be cured by the Act of 1822–3
Secondly, that the Revenue Act of 1839 did repeal all former laws on the subject, and did not retain them for finishing up the collections of the revenue for 1838; and therefore, that a sale made under the old laws, after their repeal, was void–4 This is all–5Yours as everA. Lincoln–
as to the old curing & [revenue?] laws7
1Abraham Lincoln wrote and signed this letter. He did not, however, write any of the script on the second sheet, shown in the second image.
2Smith v. Gardner was an ejectment case that began trial at the U.S. Circuit Court, District of Illinois on January 20, 1852. In American law, “ejectment” relates to an action to recover land or other real property and to collect damages. Originally, in the English common law, only tenants could use this action to recover possession of land from which they had been unlawfully ousted. Because of the simplicity and swiftness of the ejectment procedure, landowners began to use this action to recover land. To do so, the landowner, on behalf of a fictitious tenant (John Doe), sued a fictitious defendant (Richard Roe) for ousting the fictitious tenant. The court titled such cases John Doe ex dem. “Landowner” v. Richard Roe. When the defendant appeared in court, the clerk sometimes replaced “Richard Roe” with the defendant’s real name. In an act passed in March 1839, the Illinois General Assembly abolished the need for the fictitious names. The losing party in an ejectment case was entitled by law to one new trial simply by paying the court costs.
Lincoln, Hezekiah M. Wead, and Orville H. Browning served as attorneys for the plaintiff, Spencer Smith, and Stephen T. Logan served as attorney for James Gardner, the defendant. At the heart of the suit was a dispute over Gardner’s occupation of 160 acres of land in Fulton County, Illinois, land over which Smith claimed ownership and from which he wanted Gardner ejected. The original case was decided the same day Lincoln penned this letter to Browning—January 26, 1852. Judge Thomas Drummond ruled for Smith.
Complete Record, Document ID: 68744, Smith v. Gardner, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, 2d edition (Springfield: Illinois Historic Preservation Agency, 2009), http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=137716; “Ejectment,” Reference, Glossary, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Reference.aspx?ref=Reference%20html%20files/Glossary.html.
3During the trial, Logan had attempted to argue that per the act of 1819 establishing the recorder’s office, Smith’s deed was fraudulent and void and that, therefore, Gardner’s deed from August 1820 took precedence over Smith’s deed and claim to the land. Section eight of the act of 1819 required all deeds and conveyances of real estate to be recorded in the newly-created recorder’s office for the county in which the property in question was located, and declared any deeds or conveyances not recorded in this manner to be “fraudulent and void.”
However, the court determined that Gardner’s deed of August 1820 did not take precedence over Smith’s deed of January 1820 because, despite being recorded “defectively” in June 1820, Smith’s deed was “cured,” or made official, by an act in 1822 concerning deeds. The act contained a section which declared that all deeds, mortgages, transfers, and conveyances of real estate originating outside the state of Illinois were valid so long as they had initially been created in accordance with the laws of the state or territory in which they originated. (In legal terminology, a conveyance refers to the transfer of property ownership between people by written instrument. It can also refer to the written instrument or document used to accomplish such a transfer.)
“An Act Establishing the Recorder’s Office, and for Other Purposes,” 19 February 1819, Laws of Illinois (1819), 18, 20; “An Act Concerning Deeds Executed Without this State,” 30 December 1822, Laws of Illinois (1822), 85-86; “Conveyance,” Reference, Glossary, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Reference.aspx?ref=Reference%20html%20files/Glossary.html.
4In 1839, the Illinois General Assembly passed an act concerning public revenue. The act contained several sections related to the collection of taxes on property which were relevant to the case. Lincoln, Wead, and Browning were likely most interested in sections seventeen and forty-three of the act, both of which contained guidelines related to the sale of property that an owner had failed to pay taxes on. Since, as Lincoln notes, the act repealed all former laws on the subject, any purchase of the land in question due to non-payment of taxes in 1838—conducted under old legislation—was deemed a void sale by the court.
5After the case was decided against him, Gardner paid the court costs. By law, this entitled him to a new trial, which Logan requested on January 27, 1852. Eventually, on February 1, 1853, the case was once again decided in favor of Smith.
Complete Record, Document ID: 68744; Execution Docket, Document ID: 65797, Smith v. Gardner, The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=137716; “Ejectment,” Reference, Glossary, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Reference.aspx?ref=Reference%20html%20files/Glossary.html.
Copy of Autograph Letter Signed, 2 page(s). Abraham Lincoln Association Files, Lincoln Collection, Abraham Lincoln Presidential Library and Museum (Springfield, IL).