The Kirtland Safety Society has long been the source of research and debate within the historical community.1 Most commentators agree that the Safety Society was an imprudent venture. Some have even argued that its failure marked an almost fatal blow to Joseph Smith’s leadership.2 Charges of personal gain and illegality are sometimes included in their critique.3 In addition to the good work done by many scholars, there is more to be said about the legal history of the Kirtland Safety Society. This article seeks to provide a more thorough analysis of the legal establishment of the Society and the challenges to it in court than has been provided before.4 To do so, this article will be separated into four parts.5
Part I will provide a necessary background of information about the economy in nineteenth-century America and particularly in Kirtland, Ohio, that gave rise to the organization of the Society, shedding new light on how it fit into the broader national financial landscape. After the closure of the Second Bank of the United States, more local banks arose to take its place. The Kirtland Safety Society was originally proposed as a chartered bank, and Orson Hyde tried but failed to have the Ohio legislature charter it, due principally to political dynamics. The Society was then reorganized as a joint stock company. Church leaders also acquired a controlling interest in the Bank of Monroe in Michigan and apparently hoped to have the Society operate under that bank. Knowing how it was legally established informs our understanding of the legal challenges it later encountered.
Part II examines the events—nationally, locally, and internally—that led to the failure of the Kirtland Safety Society. This part explains how the Panic of 1837 impacted the entire Ohio valley financial community, including Kirtland, as well as the Bank of Monroe. This national financial crisis is placed in context with the leadership crisis that emerged during this same time within the LDS Church, aimed principally at Joseph Smith. Disaffection led some participants in the bank to withdraw funds from the Society, whether innocently or maliciously, that contributed to the bank’s final collapse. But other key directors of the bank and partisans in Kirtland committed what can only be viewed as malfeasance, resulting in Joseph Smith affirmatively disassociating himself from the Society in August 1837.
Part III then provides a detailed analysis of the only lawsuit brought against Joseph Smith and other leaders over the operations of the Safety Society. Grandison Newell, by his admitted straw man, Samuel Rounds, brought this suit in early February 1837. The suit was premised on the claim that operating the bank without a charter violated an Ohio banking act enacted in 1816. Under that act each such operator was subject to a $1,000 fine. This part provides an assessment of the legal merits of this claim and of the defense raised by Smith’s legal counsel that the 1816 act was not in force at any time relevant to the Kirtland Safety Society. Finally, this part details the legal outcome of the case in the entry of judgments against Smith and Sidney Rigdon, in Newell’s collection efforts, and in the final settlement of the case.
Part IV goes on to show how Grandison Newell continued his campaign against Joseph Smith and revived the judgment in 1860, even though it had been previously settled. Newell then used the revived judgment to open probate proceedings against Joseph Smith’s estate using Newell’s own grandson-in-law as the executor of Smith’s estate. Newell partnered with William Perkins, who was Joseph Smith’s legal counsel during the underlying lawsuit, and manipulated the probate proceedings to acquire title to the Kirtland Temple more than twenty years after Smith had left Kirtland and fifteen years after his death. Finally, this part will examine whether it was legally proper to include the Kirtland Temple as part of Joseph Smith’s estate subject to the collection efforts pursued by Newell and Perkins. These legal proceedings played a central part in the Reorganized Church of Jesus Christ of Latter Day Saints’ first legal claim of ownership to the Kirtland Temple.
The Rise of the Kirtland Safety Society
Everything about the Safety Society, known formally at its inception as the Kirtland Safety Society Bank, must be viewed within the broader context of banking practices, legal definitions, and the national economy in the 1830s. Although the organizers of this company used available legal counsel and followed accepted business practices, the venture was met with overwhelming difficulties and challenges on several fronts—politically, legally, and economically—that were beyond their control.
With the election of Andrew Jackson in 1828 came the inevitable demise of America’s second effort to establish a central banking system.6 True to his reelection campaign promise in 1832, Jackson successfully caused the second bank to prematurely become ineffective by withdrawing government funds in 1833. It would finally close in 1836. With this closure and the corresponding termination of a national currency, the only money remaining was specie. Specie, often referred to as “hard currency,” included gold, silver, and copper minted into coins by the government. Specie, by its very nature, was inherently and chronically in short supply,7 particularly in the Western Reserve and the rest of Ohio.8 Such shortages restricted economic growth, especially in frontier America.9 To fill this growing vacuum came a rapid increase in the use of banknotes. Banknotes are essentially a form of promissory notes.10 Promissory notes are negotiable debt instruments. However, between individuals the ability to use them as transferrable currency is very limited.11 “Banks were able and willing to meet the demand for money by the simple process of exchanging the notes of a bank for the promissory note or bill of exchange of a firm or individual, i.e., by exchanging one kind of debt for another. The evidence of a bank’s debt had general acceptability as a medium of exchange; the evidence of a firm’s or individual’s debt did not. Thus, by monetizing private debt, the growing demand for money was met.”12
Not only did banknotes increase the supply of money, but they created greater economic liquidity. While money is the most liquid of assets, land, crops, and equipment are some of the least. Since America in the early nineteenth century was predominately agrarian, specifically in the Ohio valleys,13 farmers, while not being poor per se, were in a very illiquid position. The use of banknotes backed by farms allowed them to participate to a far greater extent in the local economies. In this manner, local banks issuing banknotes became a principal vehicle to allow more people to participate in the growth of the economy.14 However, without the protections, regulations, or governance of a central banking system, these local banks were fragile financial institutions.15
It is within this environment that the boom years of Kirtland in the early to mid-1830s occurred.16 With the significant influx of Mormons arriving in Kirtland throughout this time,17 Kirtland experienced unprecedented economic growth.18 The economy generated a full array of agricultural products, including sheep, cattle, dairy, grains, and maple sugar. Manufacturing products in Kirtland included tanned goods, lumber, ash, bricks, and even cast-iron products. The connection to Cleveland in 1833 by the Ohio Canal only further enhanced the economic opportunities in Kirtland.19 Yet, accompanying such growth was significant inflation. Land prices increased in Kirtland 500 percent between 1830 and 1837;20 in one year alone (1836–1837) food prices increased by 100 percent.21 Such inflation was further aggravated by a shortage of money.22 Access to banking services in Kirtland was severely limited to the Bank of Geauga headquartered in Painesville, Kirtland’s economic competitor. Mormons found that such financial services were generally inaccessible, since anti-Mormons were controlling them.23 Further, the Mormons were struggling to carry the debt associated with the building of the Kirtland Temple,24 coupled with the closure of the United Firm in 1834 and the various businesses being returned or given to its members.25
The LDS Church had few avenues to generate income to fund its growing financial needs and obligations. These dynamics led Church leaders to look at creating their own local bank in Kirtland to alleviate these problems. Opening a local bank appeared to be a viable solution. And such a solution made good economic sense, as a local newspaper noted about the announcement of the opening of the Society: “It is said they have a large amount of specie on hand and have the means of obtaining much more, if necessary. If these facts be so, its circulation in some shape would be beneficial to community, and sensibly relieve the pressure in the market so much complained of.”26
As Joseph Smith, Hyrum Smith, Sidney Rigdon, and Oliver Cowdery returned from Salem, Massachusetts, in September 1836, it appears that they had finalized their decision to open a bank in Kirtland.27 By mid-October the venture was organized to accept money from initial shareholders in exchange for stock. To facilitate greater participation, stock shares were given the unusually low face value of $50 per share,28 in contrast to other local banks offering shares for between $100 and $400 per share.29 Small quarterly installment payments ($0.13 per share) further allowed more to participate.30 Shares were sold at a deeply discounted price, selling, on average, for $0.2625 per share, or .525 percent of the face value.31 Sidney Rigdon made ten separate donations totaling $751.64, for which he received 3,000 shares of stock with a face value of $150,000. Joseph Smith and his family contributed fifty-one times for a net total of $1,310.18.32 By the end of October 1836, the venture had attracted thirty-six subscribers or investors contributing more than $4,000.33 Joseph Smith and his family would become the largest investors in the Society, owning collectively 12,800 shares.34 In this manner the venture was funded through private investors who in return received stock in the company. A contemporaneous account notes that the Safety Society was further financially backed by real property.35 The venture then would make loans documented by banknotes. Most often the borrower collateralized these loans with farmland.
An organizational meeting was held on November 2, 1836. The original organization of the Kirtland Safety Society Banking Company included thirty-two directors36 with a Committee of the Directors of six members, namely Sidney Rigdon, President; Joseph Smith, Cashier; Frederick G. Williams, Chief Clerk; with David Whitmer, Reynolds Cahoon, and Oliver Cowdery as members. An organizational document captioned as the “Constitution” was also adopted at this initial meeting. This constitution was published as a Messenger extra in early December 1836. The constitution, found in full below as appendix A, included fourteen articles that can be summarized as follows:
Article I: Authorized capital stock of $4,000,000, with shares at $50 par value37
Article II: The Society was to be managed by thirty-two directors
Article III: Three officers: President, Cashier, and Chief Clerk
Article IV: Six of the directors to examine any notes presented for discounting, and to assist in all matters
Article V: $1 per day paid to the officers and six directors for meetings twice a year; officers compensated as the directors shall agree
Article VI: Adoption of constitution and election of officers
Article VII: Books of the bank always open for inspection by stockholders
Article VIII: Dividends declared every six months
Article IX: Timing of installment payments to be made by persons subscribing stock
Article X: Notice for required payments of installment subscriptions
Article XI: President empowered to call special meetings of the board
Article XII: Quorum is ⅔ of directors for regular board meetings; officers may transact weekly business.
Article XIII: Procedures for adopting bylaws
Article XIV: Procedures for amending this constitution by ⅔ vote of the stockholders.
With the corporate organization of the Society in place, the next step was to have the organization recognized or chartered by the Ohio legislature. The political climate seemed to dictate the Church’s decision to send Orson Hyde, one of the original directors, to Columbus, Ohio, to seek a state charter for the Kirtland Safety Society. While the country was heavily Democratic with the elections of Presidents Jackson and then Van Buren, Geauga County, Ohio, where Kirtland was located, was a Whig stronghold in an otherwise Democratic state. And Hyde was a Whig.38 Hyde briefly met with Joseph Smith and others returning from Salem, where he was most likely advised about the anticipated banking venture. However, upon his return to Kirtland he did not become actively involved in the Society. He never became a shareholder in the venture.39 Hyde’s efforts in Columbus with the legislature were less than successful. Bad weather resulted in his late arrival, and the backroom negotiations, giving political favors, and lack of any political alliances proved fatal.40 While one might expect that, at a minimum, he could look to his state representatives and senator from Geauga County for assistance,41 these representatives did not sponsor the bill, and Senator Ralph Granger voted against the proposal.42 All three were friends of Newell. Representative Timothy Rockwell and Granger were involved in Newell’s efforts to build a railroad from Fairport to Wellsville, Ohio.43 In the end, the proposal for a state charter for the Society was never even read on the floor of the legislature before the Christmas break as hoped.44
By January 2, 1837, the leadership of the Society, recognizing that the chances to obtain a state charter looked doubtful and apparently following legal advice,45 decided to legally reorganize the Kirtland Safety Society from a corporate entity (which would require a state charter) to a private joint stock company—a sophisticated kind of partnership. This change is often overlooked but is legally significant, especially in regard to legal powers to issue notes and with respect to unlimited liability of its owners.46
Joint stock companies had existed for centuries,47 including specifically their use as a vehicle for banking. For example, the Bank of England, established in 1694, was founded as a joint stock company. In the United States, joint stock companies took root early on and became an integral part of American business practically from the time the United States won its independence.48 Under the direction of Alexander Hamilton, the First Bank of the United States was founded in 1791 as a joint stock company.49 And the Second Bank of the United States was formed under the direction of President James Madison in 1816 under the same structure as Hamilton’s first bank—a joint stock company.50 These national banks bypassed reliance on state charters, which Hamilton viewed as ceremonial; instead, these banks were based on contract. The legal efficacy of the Second Bank of the United States was tested in 1819 before the United States Supreme Court in McCulloch v. Maryland,51 where the Court found, in part, that the bank as a joint stock company was not required to comply with state (Maryland) chartering laws.
Like a partnership, a joint stock company is an unincorporated business entity that trades upon joint stock or partnership interests. They are business entities “assuming a common name, for the purpose of designating the society, the using of a common seal, and making regulations by means of commodities, boards of directors, or general meetings.”52 Two distinctions typically differentiate a joint stock company from a corporation (in addition to a lack of legislative approval) in the early nineteenth century. First is the reliance by the members of a joint stock company on contractual terms rather than statutory provisions to articulate their rights and duties.53 In the case of the Kirtland Safety Society, the amended Articles of Agreement for this new entity were prepared and published in the Messenger and Advocate,54 delineating the contractual rights and duties of its members. (A full copy of the minutes and the Articles of Agreement can be found in appendix B.) Second is the lack of limited liability as found in corporate entities, thereby making its members personally, jointly and severally, liable for the obligations of the venture.55 In this manner, a joint stock company operates like a partnership for liability purposes. Article 14 of the Society’s amended Agreement articulates this nuanced, albeit fundamental, change, providing, “All notes given by said society, shall be signed by the Treasurer and Secretary thereof, and we the individual members of said firm, hereby hold ourselves bound for the redemption of all such notes.” By the terms of the Agreement, only this provision could not be amended or changed.56 The official name of the venture was also changed to the Kirtland Safety Society Anti-Banking Company in an apparent effort to further evidence and to give full public notice of this important change in the structure and legal form of the Society from a state-chartered corporation to a joint stock company.57 In recognition of this evolution, Warren Cowdery, the then editor of the Church’s Messenger and Advocate, published an editorial in July 1837 about the Safety Society, noting: “It was considered a kind of joint stock association, and that the private property of the stockholders was holden in proportion to the amount of their subscription, for the redemption of the paper issued by the bank.”58
Table 1. Differences between a Joint Stock Company and a Chartered Bank Corporation
|Joint Stock Company||Chartered Bank Corporation|
|Did not require a state charter||Required a state charter|
|Self-regulated by contract||State regulated by statute|
|Members (stock holders) are fully liable||Limited liability|
With these changes in place, the leaders worked to open the Society in early January 1837.59 Within a week of opening, the venture had loaned its first installment of notes, totaling approximately $10,000 in $1s, $2s, and $3s.60 The loans evidenced by the notes were for 90 days, a typical length for notes during this time. These initial efforts generated the exact result hoped for—increased economic activity in Kirtland. This included the funding for the construction of Joseph Street, which fronted the Kirtland Temple; increased sales at the Newel K. Whitney store; and the acquisitions of additional farmland.
Shortly after the Safety Society commenced business, it entered into various agreements with individuals to serve as agents to the Society to expand the exposure and use of the Society in different communities. For example, on January 14, 1837, the Society entered into an agreement with David K. Cartter,61 a young lawyer in Akron, Ohio,62 whereby Cartter was provided up to $30,000 in Society notes to use to secure loans and exchange for other banknotes in Akron and the surrounding communities.63 At the same time, Cartter executed a bond for the Society notes with Eliakim Crosby and James W. Phillips as sureties.64 Similar agreements were executed between the Safety Society and Ovid Pinney and Stephen Phillips on March 14, 1837.65
These initial positive results soon met with failure. An attack on the Society came when Grandison Newell bought Kirtland Safety Society notes and then took them to the Society office to be redeemed for specie in an effort to deplete its capital reserves.66 Rural banks had capital tied up in land and generally could not turn assets into cash fast enough to meet notes presented for redemption.67 The nation was beset with land speculation, and the Saints were not immune from it.68 Threats of mob violence increased. As Wilford Woodruff recorded on January 24, 1837, “We had been threatened by a mob from Painesville to visit us that night & demolish our Bank & take our property.”69 The Painesville Telegraph, which had strong anti-Mormon sentiments, also started publishing aggressive articles about the dangers and alleged illegalities of the newly launched Society.70
Both the success of and challenges to the Kirtland Safety Society resulted in the Society leaders deciding to undertake two additional efforts to secure a state corporate charter for the Society. The first was to instruct Hyde to make additional efforts to get the proposed charter sponsored before the end of the legislative session. Hyde made contact with Samuel Medary, a Democratic senator who was proposing banking reform.71 Such efforts did result in getting the proposed charter read on the floor of the Senate, but the proposal failed on a 24 to 11 vote.72 That vote, closing this first door, came on the same day that Joseph Smith and others arrived in Monroe, Michigan,73 seemingly opening a second door.
The second effort was to acquire a controlling interest in an out-of-state chartered bank with the objective of making the Society a branch or subsidiary of that already chartered bank. This business and legal approach had been done numerous times by large banking institutions in the East as they acquired banks as branches or affiliates in various states throughout the country. Ohio law permitted this practice.74 The leaders of the Society selected the Bank of Monroe, located in Monroe, Michigan, as its target for such a merger or acquisition. The Bank of Monroe was one of the oldest banks in Michigan, having been chartered in 1827.75 Monroe, Michigan, was only 150 miles from Kirtland. By February 10, 1837, Joseph Smith, Hyrum Smith, Sidney Rigdon, and Oliver Cowdery arrived in Monroe and closed the deal.76 Previously, to avoid a possible conflict of interest, Oliver Cowdery had resigned from the Society77 and disposed of his other business interests in Kirtland. The owners of the Bank of Monroe sold their controlling interest in that bank to the Kirtland Safety Society, with the Society paying upfront $3,000 in Cleveland drafts and receiving notes totaling more than $20,000 from principals of the Bank of Monroe.78 As a part of the deal, Cowdery was appointed a director and vice president of the Monroe Bank. Cowdery stayed in Monroe when the others returned to Kirtland.
The Fall of the Kirtland Safety Society
While these efforts should have resolved the Society’s charter issue, the national Panic of 1837 ultimately thwarted all efforts to create a viable banking venture. The panic started in New York City in mid-February 1837. Banks across the nation began to close in March 1837. Rioting and looting was widespread throughout the country—starting in the East.79 Many have pointed to President Jackson’s policies, including the demise of the Second National Bank of the United States as well as requiring all federal land acquisition to be made in specie rather than notes, as the catalyst to the panic.80 The federal government sought to stem the panic by releasing more specie into the economy, totaling more than $9,000,000. Such efforts did little to improve the situation.
The panic was devastating to the Bank of Monroe, resulting in its temporary closure.81 In fact, all the banks in Michigan would close, some temporarily and some permanently.82 This financial crisis resulted in Michigan enacting what would be the nation’s first “free banking” laws.83 Enacted on March 15, 1837, this act removed altogether the requirement that a bank needed a state-approved charter.84 This innovation undermined those banks already having charters in Michigan, as well as reliance on Michigan charters by organizations, such as the Kirtland Safety Society, in the other states. With the closure, albeit temporary, of the Bank of Monroe, Cowdery resigned as a director and returned to Kirtland.85
Banks throughout Ohio were similarly decimated. On June 29, 1837, the Bank of Geauga closed.86 The Society was similarly affected. With the hope of its survival diminishing, Joseph Smith and Sidney Rigdon stopped issuing any notes and instead looked to collect on the loans that were starting to come due in April 1837. The discount and loan book for the Safety Society evidences that some notes were indeed redeemed during this time.87
A second blow to the Society came in May 1837 with disagreement (including disaffection) with various Mormon leaders,88 including Orson and Parley Pratt, Luke and Lyman Johnson, Frederick G. Williams, John Boynton, Warren Parrish, and, most importantly for the Society, John Johnson. John Johnson had acquired 3,000 shares in the Safety Society, the maximum number of shares allowed for an individual. He had pledged much of his real property as collateral for this purchase. This collateral was essential in keeping the Society solvent. However, with his departure from the Church, Johnson took with him his property, transferring much of it to family members.89 While Johnson’s actions appear to have been in violation of the terms and conditions of the Safety Society, no legal action was ever taken against him.90 With such defections and financial reversals, both Joseph Smith and Sidney Rigdon resigned from the institution before early July 1837, apparently trying to prevent further losses by those inclined to continue supporting the venture.91 Yet, even with Smith’s and Rigdon’s resignations, Warren Parrish and Frederick G. Williams, now disaffected from the Church, assumed control of the Kirtland Safety Society and continued to make loans by issuing more banknotes.92 Parrish in particular appears to have abused his position as the president of the Society, replacing Sidney Rigdon.93 Parrish was accused of massive malfeasance during his tenure as president, including forgery94 and embezzlement.95
With such improprieties mounting, in August 1837 Smith published a public notice in the Messenger and Advocate captioned as “Caution,” noting:
To the brethren and friends of the church of Latter Day Saints, I am disposed to say a word relative to the bills of the Kirtland Safety Society Bank. I hereby warn them to beware of speculators, renegadoes and gamblers, who are duping the unsuspecting and the unwary, by palming upon them, those bills, which are of no worth, here. I discountenance and disapprove of any and all such practices. I know them to be detrimental to the best interests of society, as well as to the principles of religion.
JOSEPH SMITH Jun,96
Such “Caution” effectively ended Joseph Smith’s direct involvement with the Safety Society. But the fallout was yet to be fully felt. One could expect a plethora of litigation to result from the failure of the Society, for it is estimated that more than two hundred individuals who had bought stock in the venture suffered losses97 in addition to the numerous parties who held Kirtland Safety Society notes.98 Yet only one action was filed against Joseph Smith,99 and that was by his nemesis, Grandison Newell,100 as we will see below.
Part III: The Legal Aftermath of the Kirtland Safety Society
Political and Legal Backgrounds
Banking problems had been part of the political and legal landscape for thirty-four years before issues arose regarding the Safety Society. Banking had begun in Ohio in 1803 during its first legislative session101 with the granting of a corporate charter to the Miami Exporting Company102 on April 15, 1803, for the purpose of exporting agricultural products and banking, including the right to issue notes.103 Other chartered banks soon dotted Ohio, including the Bank of Marietta and Bank of Chillicothe in 1808, Bank of Steubenville in 1809, Western Reserve Bank and Bank of Muskingum in 1812, Farmers’ & Mechanics’ Bank in 1813, and the Dayton Manufacturing Company in 1814.104 During this same time, various other businesses in Ohio began carrying on banking operations without charters. For example, in 1807 the Alexandrian Society of Grantsville, which was chartered for literary purposes, began issuing banknotes. The Bank of Marietta and Farmers’ & Mechanics’ Bank began operations as a bank before they had received their charters from the legislature. “Many other unauthorized banks were established in the state [Ohio] during the years 1811 to 1814, and by the close of the latter year the large amount of notes issued by these institutions had become a matter of concern to the legislature.”105
The Act of 1816. On February 8, 1815, the Ohio General Assembly formally addressed this public problem by passing its first act prohibiting the unauthorized issuing of banknotes.106 As one commentator in 1896 noted, “In 1815, Ohio commenced a war which she carried on longer and more vigorously, because apparently with less success, than any other State, against unauthorized bank notes.”107 In the next session, the Ohio legislature strengthened its attack on unauthorized banking activities by enacting on January 27, 1816, “An act to prohibit the issuing and circulating of unauthorized bank paper” (hereafter cited as Act of 1816). The Act of 1816 provided for a $1,000 penalty against any “officer, servant, agent or trustee” of an unincorporated “bank or money association.”108 The Act of 1816 also provided that an “informer” could bring an action of debt (a civil action) against violators of the Act and receive 50 percent of the recovery, with the other 50 percent “going to aid to the public revenue of the state.”109 The Act of 1816 further made all shareholders or partners in any such banking venture jointly and severally liable “in their individual capacity, for the whole amount of the bonds, bills, notes and contracts of such bank.”110 As these provisions indicate, the Act of 1816 was focused on punishing the bank, its officers, and owners—the direct and indirect suppliers of unauthorized banknotes in circulation.111
In 1823, during the Twenty-First General Assembly of the State of Ohio, a three-person committee was formed to revise the laws of Ohio.112 The rationale was explained by resolution that the frequent revisions of the laws of the state have resulted in “an unavoidable consequence, [of] our statutes becom[ing] in short order, so voluminous and complicated, that it is difficult for officers of our government, and still more so for those less conversant with our statute books, to determine what is the law, by which they are [to] regulate their conduct.”113 During previous sessions when laws were enacted, revised, amended, or repealed, the legislature had concurrently worked to reconcile such changes with the then existing laws. This process resulted in the General Assembly having “revise[d] the laws of a general nature, three times in a period of thirteen years.”114 Yet such efforts proved problematic, taking up much of the time and energy of the legislature, and even then the “revised laws have not therefore, presented to the public, that definite and concise, that simple and uniform code, which is so desirable.”115 The remedy was to appoint a three-person committee tasked with the responsibility
to digest and compile a code of laws, containing the principles of the laws now in force, expunging therefrom such acts and parts of acts, as have been repealed, have expired by limitation, or have been superseded and rendered nugatory by subsequent acts; . . . to draft separate bills containing such new principles as they may be directed by the General Assembly to adopt; or such as they may think proper to recommend; and also separate bills containing the necessary amendments of such other acts as will be affected by such new principles, so that those principles may be adopted or rejected by the General Assembly without destroying the harmony of the code.116
The Act of 1824. As part of its efforts, this committee proposed a new act entitled “Act to regulate judicial proceedings where banks and bankers are parties, and to prohibit bank bills of certain descriptions” (the “Act of 1824”).117 Section 23 of this Act specifically addressed unauthorized entities issuing banknotes: “That no action shall be brought upon any notes or bills hereafter issued by any bank, banker or bankers, and intend for circulation, or upon any note, bill, bond or other security given, and made payable to any such bank, banker or bankers, unless such bank, banker, or bankers shall be incorporated and authorized by the laws of this state to issue such bills and notes, but that all such notes, and bills, bonds, and other securities shall be held and taken in all courts as absolutely void.”118
Section 23 of the Act of 1824 superseded the Act of 1816. Its aim was not to stop the supply of unauthorized banknotes, as the Act of 1816 had tried to do, but rather aim at stopping the demand for such unauthorized banknotes by declaring such notes to be void and unenforceable in court.119 This shift in focus remained the law in Ohio until 1840, when the General Assembly of Ohio repealed section 23 of the Act of 1824.120 Thus, significantly, the Act of 1824, and not the Act of 1816, was the operative law at the time when the notes of the Safety Society were being circulated. Not only did the General Assembly in 1840 repeal section 23, but it also reaffirmed that with its repeal the Act of 1816 was no longer suspended.121
The legal effects of the suspension of the Act of 1816 with the enactment of section 23 of the Act of 1824 and then the repeal of section 23 and the reinstatement of the Act of 1816 in 1840 were explained by the Ohio Supreme Court in Johnson v. Bentley.122 The defendants in that case had interposed a general demurrer (a demurrer being an attack on the legal sufficiency of an action) over a judgment entered against them under the Act of 1816 for being officers of an unauthorized bank issuing banknotes. The defendants argued that the enactment of section 23 of the Act of 1824 effectively repealed the Act of 1816. Consequently, when section 23 itself was repealed in 1840 and the General Assembly did not reenact the Act of 1816, any claims brought under the Act of 1816 were rendered invalid. Justice Nathaniel C. Reed123 affirmed the judgment against the alleged bankers:
The act of 1824 did not repeal the act of 1816, it only suspended its action. If it had repealed it, the repeal of the repealing act would not have revived it . . . Under the act of 1816, suits could be maintained upon the notes and bills of unauthorized bankers. The 23d section of the act of 1824 declared that the courts should no longer entertain such suits. The 11th section of the act of 1816, which fixed the liability of illegal bankers upon their bills and notes, remained unaffected. But the 23d section of the act of 1824, forbid the courts to entertain any suit or action upon such liability. Then, after the passage of the act of 1824, there was a liability without a right of action to enforce it. The remedy was denied,—it has been restored by a repeal of the act denying it. This is, then, a mere case of suspending remedy, and the legislature has the full power to restore it.124
Justice Reed further explained that the policy behind the enactment of section 23 of the Act of 1824, which precluded the remedies under the Act of 1816, was aimed at “alarming the people, and refusing a remedy upon such paper . . . [with the] evident intention to create distrust in the public mind.”125 However, “after a trial of the policy of the 23d section of the act of 1824 for sixteen years, it was found that it did not check illegal banking. . . . To have protected such men in their ill-gotten wealth, by the 23d section of the act of 1824, would have been a species of legalized robbery. The legislature [in 1840], therefore, repealed that clause of the  act, which forbid suits to be brought by the holders of such paper.”126
Thus, during the one-year period when the Safety Society operated (November 1836–November 1837), the Act of 1816 was in suspension, having been replaced by the Act of 1824. Section 23 of the Act of 1824 provided that no claims could be brought under the Act of 1816 and, furthermore, that no holder of a banknote from an unauthorized bank could bring an action against any of the officers, directors, or owners of such bank. Notwithstanding all of this, the case of Rounds v. Smith, which was the only piece of litigation actually pursued against Joseph Smith in connection with the collapse of the Safety Society, was aimed at doing just that.127
Grandison Newell’s Year in Court
Already on February 9, 1837, only slightly over a month after the bank had opened on January 3, 1837, Samuel D. Rounds128 initiated six suits against each of the then Committee of Directors of the Kirtland Safety Society Anti-Banking Co., including Joseph Smith, Sidney Rigdon, Warren Parrish, Frederick G. Williams, Newel K. Whitney, and Horace Kingsbury.129 Samuel Rounds sued as a straw man for Grandison Newell.130 Newell later reportedly said that he paid Rounds $100 to bring the cases.131 Newell’s involvement is beyond dispute, as he even starts to appear in the court pleadings themselves shortly after judgment was entered in October 1837.132 These suits were specifically brought under the Act of 1816, alleging damages as provided under section 1 of $1,000133 in each case. These suits were also brought as qui tam134 suits as provided for in section 5 of the Act of 1816135 that allowed the informer—who here was Rounds—to recover 50 percent of the fine imposed. Rounds retained Reuben Hitchcock136 to represent him in this action.137 Hitchcock was also the state prosecutor for Geauga County.138 Consequently, Hitchcock was the attorney for Rounds, as well as the State of Ohio. Each suit was captioned Samuel D. Rounds v. [Defendant].139
Rounds had writs of summons140 ordered by Presiding Judge Van R. Humphrey141 and issued on February 9, 1837, by the court clerk, David D. Aiken,142 against each defendant. These summons commanded that the various defendants appear before the Geauga County Court of Common Pleas on March 21, 1838, to answer the action of a plea of debt143 for $1,000 each. Describing the claim, the summons was endorsed, noting, “Suit brot to recover of deft [defendant] a penalty of $1000 incurred by acting on the 4th day of Jan.y 1837, as an officer of a Bank not incorporated by law of this State and denominated ‘The Kirtland Safety Society Anti Banking Co.’ contrary to the Statute in such case made and provided. Amt. claimed to be ‘due $1000.’”144
Sheriff Abel Kimball145 served the summons on the defendants.146 The returns of the summons were reviewed by the Geauga County Court of Common Pleas on March 21, 1837, during its March term and the court continued the case until the June term.147
On April 24, 1837,148 Rounds, by his counsel, Reuben Hitchcock, filed his declaration (hereafter cited as Declaration) with the court. A declaration is roughly the equivalent of the filing of a complaint today.149 The Declaration, using the pleadings from the case brought against Joseph Smith as illustrative, in pertinent part, stated (paragraph numbers and emphasis added):
1. Samuel D. Rounds who sues as well for the State of Ohio as for himself complains of Joseph Smith Junior in a plea of debt.
2. For that the said Joseph Smith Junior on the fourth day of January in the year of our Lord one thousand eight hundred and thirty seven at Kirtland township in said County of Geauga did act as an officer, servant, agent and trustee of a Bank called “The Kirtland Safety Society Anti Banking Co.” which said Bank was not then and there incorporated by law; contrary to the Statute in such case made and provided whereby and by the force of the said statute the defendant has forfeited for said offence the sum of one thousand dollars and thereby and by force of said statute an action hath accrued to the plaintiff who sues as aforesaid to have and demand of and from the defendant for the said State of Ohio and for himself, the said sum of one thousand dollars one half for the said State of Ohio and the other half for the plaintiff.
3. And also for that the said defendant afterwards to wit; on the day and year last aforesaid at Kirtland township aforesaid in the County of Geauga aforesaid did act as an officer of a certain other Bank called and denominated “The Kirtland Safety Society Anti Banking Co.” which said last mentioned Bank was not then and there incorporated by law by then and there assisting in the discounting of paper and lending money for said Bank contrary to the Statute in such case made and provided, whereby and by force of the said statue the said defendant has forfeited for said last mentioned “offence” the further sum of one thousand dollars; and thereby and by force of said statute an action hath accrued to the plaintiff who sues as aforesaid to have and demand of and from the said defendant for the said State of Ohio and for himself the said last mentioned sum of one thousand dollars; one half for the said State of Ohio and the other half for the plaintiff.
4. And also for that the said defendant afterwards to wit; on the day and year last aforesaid at Kirtland township aforesaid in the County of Geauga aforesaid did act as an officer of a certain other Bank not incorporated by law; contrary to the Statute in such case made and provided whereby and by the force of the said statute the defendant has forfeited for said last mentioned offence the further sum of one thousand dollars and thereby and by force of said statute an action hath accrued to the said plaintiff who sues as aforesaid to have and demand of and from the defendant for the said State of Ohio and for himself said last mentioned sum of one thousand dollars, one half for the said State of Ohio and the other half for the plaintiff.
5. Yet the said defendant though often requested so to do has not paid the said several sums of one thousand dollars nor any nor either of them to the said State of Ohio and to the plaintiff who sues as aforesaid; but has always neglected and refused so to do; which is to the damage of the plaintiff the sum of one thousand dollars, and therefore he brings this suit &c.150
This Declaration demarcates that the claims brought were based on the Act of 1816 for unauthorized banking. The allegations were drafted to squarely fit within the language of the Act of 1816. For example, paragraph 2, above, alleged a claim for a $1,000 penalty for being a principal in an unauthorized bank. This claim and penalty was provided in sections 1 and 2 of the Act of 1816. Likewise, paragraph 3, above, alleged a claim for a $1,000 penalty as a result of said person identified in paragraph 1, above, “discounting of paper and lending money.” This claim and penalty uses the exact language of “discounting of paper and lending money” found in section 3 of the Act of 1816. Paragraph 4, above, alleged a claim pursuant to “the Statute,” for a $1,000 penalty for being a principal in “a certain other Bank” that was also unauthorized, being “not incorporated by law.” As previously noted, the Society was originally formed as “The Kirtland Safety Society Bank Company” on November 2, 1837, and this name was changed in January 1837 to “The Kirtland Safety Society Anti-Banking Company.”151 Thus, the allegations in paragraph 4, above, may be making reference to notes that were issued and discounted under the name “The Kirtland Safety Society Bank Company,” instead of “The Kirtland Safety Society Anti-Banking Company,” but either way this paragraph bases its complaints on “the Statute,” namely the Act of 1816. Finally, each of these paragraphs in the Declaration makes reference to a 50–50 split between Rounds, as the plaintiff, and the State of Ohio. These references are in accord with section 5 of the Act of 1816 that provided that the penalty “shall go one half to the informer where the action is brought, and the other half in aid of the public revenue of this state.”
Based on the foregoing, it is clear that the Declaration is squarely, indeed, exclusively based on the Act of 1816. Rounds’s attorney, Reuben Hitchcock, further confirmed this in a letter to his father dated June 26, 1837, in which he describes the lawsuits as “qui tam suits vs the Mormons under the act prohibiting the circulation of unauthorized Bank paper to recover the penalty one half of which goes to the informer & the other half ‘in aid of the public revenue of the State,’” actually quoting the Act of 1816.152 The problem with Hitchcock’s action, however, is that section 23 of the Act of 1824, as discussed above, had suspended the Act of 1816. Consequently, regardless of the veracity of factual allegations made in the Declaration, as a matter of law, Rounds had not stated a viable cause of action. And it appears that that is what Joseph Smith and his fellow defendants’ attorneys, William Perkins153 and Salmon S. Osborn,154 understood, as they filed demurrers in each case to be heard during the June 1837 term.155 As explained by Giles Jacob:
For in every action the point of controversy consists either in fact or in law; if in fact, that is tried by the jury; but if in law, that is determined by the court.
A demurrer, therefore, is an issue upon matter of law. It confesses the facts to be true, as stated by the opposite party; but denies that by the law arising upon those facts, any injury is done to the plaintiff; or that the defendant has made out a lawful excuse; according to the party which first demurs, . . . rests or abides in the law upon the point in question. As, if the matter of the declaration be insufficient in law . . . then the defendant demurs to the declaration.156
Perkins’s use of demurrers appears both appropriate and fatal to the declarations filed by Hitchcock. Such an argument would be straightforward: For purposes of the demurrers, the facts alleged in the declarations are taken as true. However, even when taken as true, Hitchcock failed to allege a legally viable claim in the declaration as each and every claim is made under the Act of 1816, which had been suspended by the Act of 1824. Consequently, the declarations, and each claim asserted therein, should be dismissed.
Unfortunately, the demurrers that would confirm that this was the legal argument actually raised by Perkins have not survived. Rather, the court record merely notes: “This cause came on to be heard upon a demurrer to the declaration of the plff. & was argued by counsel157 on consideration
thereof whereof it is adjudge that the said demurrer be overruled with costs on motion of the def. leave is given him to amend—on payment of the costs—and this cause is continued until the next term [in the fall of 1837].”158 However, after the trial of this case, Perkins & Osborn prepared bills of exceptions that included the argument “that the statute upon which the suit was founded was not in force.”159 The importance of this argument was certainly not lost on them. The Painesville Republican even wrote about the problems with the Act of 1816 in the context of the Safety Society in an article dated January 19, 1837, noting, “a law of this state passed February 22, 1816, ‘to prohibit the issuing and circulating of unauthorized Bank Paper,’ published in the Telegraph last week, if now in force, might subject persons who give these bills a circulation, to some trouble. It is doubted however, by good judges, whether the law to which we have alluded, is now in force, or if in force, whether it is not unconstitutional, and therefore not binding upon the people.”160
In a February 16, 1837, article entitled “For the Republican,” the Painesville Republican further articulated the problems with the Act of 1816: “The law of 1816, under which these suits are instituted, has long since become obsolete and inoperative. In the year 1824, the legislature appointed by joint resolution, a committee to revise generally the laws of the State. That committee, in their sound discretion, adopted such laws as were suited to the genius and spirit of the age, and rejected such as were not; but which were made upon the spur of the occasion without much reflection or deliberation.”161
With the denial of the demurrers and the conditional granting of leave to amend, thereby continuing the case, the court assessed costs against the defendants for $1.05 each that included court costs and the opposing counsel’s legal fees.162 Payment of the costs was a condition to allow the defendants to amend their responses to the declarations—essentially to file answers. This requirement was in accord with the practice and law of the time.163 The answers filed by the defendants are also not extant.164 However, from the trial transcripts one can derive from the bills of exceptions prepared by defendants’ counsel that the answers included the following three points:
1. The Kirtland Safety Society Anti-Banking Company was not engaged in operating as a bank, but as a joint stock company.
2. The Act of 1816 upon which the case was brought was not in force after the enactment of section 23 of the Act of 1824, and even if the Act of 1816 was enforceable, the practice in Ohio was not to enforce it.
3. The making of loans by the Kirtland Safety Society Anti-Banking Company was not the circulation of paper money.
Trial in October 1837. The trial of these cases took place during the October term of the Geauga County Court of Common Pleas, commencing on October 24, 1837.165 The cases were argued before a four-judge bench,166 including presiding judge Van R. Humphrey,167 and associate judges John Hubbard,168 Daniel Kerr169 and Storm Rosa.170 The first matter of business when these cases were called was Rounds’s failure to pursue the actions against four of the six defendants, namely Warren Parrish, Frederick G. Williams, Newel K. Whitney, and Horace Kingsbury. The trial transcripts of Williams, Whitney, and Kingsbury all note: “And now at this term of said court, comes the defendant, and the plaintiff being three times demanded to come and prosecute his suit, comes not but makes default.”171 Entering default to dismiss these actions conformed to Ohio law.172
In contrast, the trial transcript regarding the action against Warren Parrish stated: “And now at this term of said Court . . . comes the said plaintiff and discontinues his suit.”173 No reason is given in the record why the case against Parrish is treated differently. A possible rationale for the difference may be found in a letter sent by Reuben Hitchcock to his father, Peter Hitchcock, dated June 26, 1837, where he asked the following question:
I wish your advice in the following matter. Last winter I was employed by Saml D. Rounds & commence w|..|rat <qui tam> suits vs the Mormons under the act prohibiting the circulation of unauthorized Bank paper to recover the penalty one half of which goes to the informer & the other half “in air of the public revenue of the State”—Under the decisions Rounds has no right to discontinue the suits, but Kingsbury who is one of the Defts [defendants] is anxious to get out of the difficulty & perhaps Rounds would let him off if he could—Under these circumstances have I as prsecuting Atty any
thecontrol over the suits? Have I any authority, where the County is not directly interested in the collection of money? If Rounds should notdirect me not to prosecute the suit any fa[r]ther, should I be under any obligation to carry it on?—Please advise me on these points.174
Perhaps Hitchcock got Warren Parrish and Horace Kingsbury confused. If that were the case, Parrish may have paid something to Rounds to get out of the case. However, neither defaulting nor dismissing these defendants fully resolved the cases, and the Geauga County Court of Common Pleas surely understood that.175 The following judgments were entered in each of these four cases: “The pl[ainti]ff being called to come into court and prosecute this suit comes not, Ordered that the plaintiff becomes non suit,176 and that the def[endan]t recov[e]r against him his costs.”177 In each case, costs were assessed against Rounds, as follows:
|Case||Court Costs||Attorney’s Fees|
|Rounds v. Parrish||$2.15||$5.00178|
|Rounds v. Williams||$2.15||$5.00179|
|Rounds v. Whitney||$2.15||$5.00180|
|Rounds v. Kingsbury||$3.53||$5.00181|
The court records do not show that any of these costs were ever paid by Rounds or Newell.
With these four cases dismissed, Rounds moved forward to try the two remaining cases. The record identifies that Joseph Smith’s case was tried just following Rigdon’s case.182 A twelve-man jury tried both.183 None of the jurors appear to be Mormons. Since both Joseph Smith’s and Sidney Rigdon’s trials occurred on the same day, one could assume that each trial took about a half day as shown by the costs. From the trial bill of costs, $2.50 was charged for witnesses in Smith’s trial,184 and $2.25 for witnesses in Rigdon’s trial.185 Witnesses subpoenaed and/or sworn to appear were paid $0.75 per day, as of June 1837, an increase from $0.50 per day.186 The statute noted that this amount is a “daily” rate, not per trial. One might reason that the witnesses testified in both trials during the same day and therefore the fees were split between the two trials. Thus, either 6⅓ witnesses testified at the $0.75 rate or 9½ testified at the $0.50 rate—an odd number either way.
The testimony solicited or the evidence introduced at the trials can only be generally surmised. As noted in the Smith and Rigdon trial transcripts, the bills of exception filed by their counsel offer some insight as to testimony and evidence that was introduced. Some evidence was objected to, but was introduced over the objections, including these four items:
1. Witnesses testified about the existence of the Kirtland Safety Society Anti-Banking Company on January 4, 1837, the third day that the venture was open.
2. Introduced as evidence were the “articles of association,” alleging the creation of the Kirtland Safety Society Anti-Banking Company.
3. Introduced also were various “bank bills of various denominations” that were allegedly issued by the Kirtland Safety Society Anti-Banking Company.187
4. Testimony was given that Smith and Rigdon were each “a director in said ‘Society’ and that he assisted in issuing and loaning the same.”
From these bills of exception, it does not appear that counsel for Smith and Rigdon put any witnesses on the stand or introduced any evidence after the plaintiff rested. Instead, once the plaintiff had rested, Smith and Rigdon’s counsel “moved the Court” as follows:
1. “To charge the Jury that the statute upon which the suit was founded was not in force”;
2. “That the loaning of said paper or bills was not a loaning of money if the statute was in force”; and
3. “That there was no evidence which would authorize them [the jury] to return a verdict for the Plff [Plaintiff].”
The court refused to grant these requests, and instead instructed the jury as follows:
1. “Charged the Jury that said Statute [the Act of 1816] was in force”;
2. “That a lending of the paper or bills was a lending of money within the statute”; and
3. “That if they found that the def[endan]t was a director in said society and assisted in issueing and lending said paper or bills it would constitute him an ‘officer’ within the meaning of the statute”; and
4. “That for the purpose of coming to a conclusion they might take the whole testimony as well the appearing of the def[endan]ts names on the same [the notes].”
The jury returned a “true verdict”188 finding that the defendant “is indebted to the plaintiff in the sum of one thousand dollars. It is therefore considered by the Court that the plaintiff recover against the defendant his debt aforesaid so found as aforesaid, and also his costs and charges by him in and about the prosecuting of this suit in that behalf expended.”189 Smith and Rigdon were not present for the verdict, but the outcome was likely not a surprise to them. Their counsel immediately prepared and submitted a bill of exceptions190 that was signed by them and “sealed,” or entered onto the record of the court. Joseph Smith and Sidney Rigdon’s remedy would have to be sought from the Ohio Supreme Court.191
While a bill of exceptions is required to create an appealable record, it was only the first of several steps to appeal a final judgment.192 Within thirty days following the trial of the case, the party appealing (the appellant) “shall enter into a bond to the adverse party,193 with one or more good and sufficient sureties, to be approved of by the clerk of such court,194 in double the amount of the judgment . . . and costs, in case a judgment or decree should be entered in favor of the appellee.”195 During this thirty-day period, on motion of the party appealing, the court may stay execution on the judgment. Once the appeal bond is entered, thereby perfecting the appeal,196 the appellant would prepare a writ of error197 based on the bill of exceptions198 to be issued by the Supreme Court.199 The clerk of the court of common pleas then would make “an authenticated transcript of the docket or journal entries, and of the final judgment or decree made and rendered in the case; which transcript, together with the original papers and pleadings filed in the cause,” would be delivered to the office of the clerk of the state Supreme Court, on or before the first day of the next term.200
However, in these two cases (Rounds v. Smith and Rounds v. Rigdon) nothing in the record evidences that appeal bonds were ever secured, motions were ever made to stay execution on the judgments, or writs of error ever requested. The court entered the judgments in both cases on October 25, 1837, while Smith and Rigdon were en route to Missouri.201 Consequentially, while the bills of exceptions delineate the legal basis for an appeal of the judgments, the appeals were never perfected or further pursued. Their lawyers, Perkins & Osborn, stopped billing after the trial and after the bills of exceptions had been prepared.
One can only speculate as to why these appeals were not further pursued by Joseph Smith or Sidney Rigdon. Neither the litigants nor their attorneys left an explanation. Legally the appeal should have been considered very strong. Yet, while the law appears clear now, at the time the courts had yet to affirm that the 1824 Act superseded the 1816 Act, and public opinion was indeed split.202 Smith and Rigdon would have to consider that the four-judge court had expressly refused to apply the law as argued by their counsel that the Act of 1816 was suspended. It would not be until 1840 that the Ohio Supreme Court would expressly rule on this matter affirming the position taken by Perkins and Osborn, even though the legislative history appears clear on this point.203 Consequently, the appeal must have looked more problematic in 1837 than it does today.
Collection efforts against Smith and Rigdon were commenced on November 6, 1837—exactly two weeks after the trials and judgments. Judgment against Smith totaled $1,024.10, comprising the $1,000 penalty under the Act of 1816, $23.35 in plaintiff’s costs204 and $0.75 in defendant’s costs.205 Judgment against Rigdon totaled $1,023.58, comprising the $1,000 penalty under the Act of 1816, $22.77 in plaintiff’s costs206 and $0.81 in defendant’s costs.207
Amid the ensuing collection efforts, Joseph Smith received the following revelation on January 12, 1838: “Thus Saith the Lord, let the Presidency of my Church, take their families as soon as it is practicable, and a door is open for them, and moove [sic] to the west, as fast as the way is made plain before their faces, and let their hearts be comforted for I will be with them.”208 Smith and Rigdon left that night for Missouri, but before they left they arranged for the payment of their debts and obligations.209 Their families followed shortly thereafter.
Collecting on judgments in Ohio was governed by statute.210 Once a judgment was entered, a judgment lien was automatically placed on all real property of the debtor in the county where the judgment was rendered “from the first day of the term at which judgment shall be rendered.”211 Personal property was only encumbered upon seizure.212 By statute the court initiated the collection process by issuing a writ of fieri facias.213 This writ directs usually the local sheriff, or other officer, to first pursue the collection on any personal property of the debtor. If no personal property was located, or if after the sheriff’s sale of such personal property the judgment was not fully satisfied, the sheriff was authorized to move for the sale of the real property of the debtor.214 Before the sheriff could proceed to sell any personal property of the debtor, he “shall cause public notice to be given of the time and place of the sale, for at least ten days before the day of sale; which notice shall be given by advertisement, published in some newspaper published in the county.”215 If land thereafter was to be sold to satisfy the judgment, the sheriff was required to obtain appraisal as to the value of the land from “three disinterested freeholders, who shall be resident within in the county where the lands taken in execution are situated.”216 Thirty-day notice of the sale of land was also required.217
While it does not appear from the record that Sheriff Kimball was successful in collecting anything from Joseph Smith,218 his efforts against Rigdon proved successful. The record notes three efforts to sell the personal property of Sidney Rigdon. The first recovered $604.50 from the sale of such personal property. The second effort indicated that the personal property seized was “claimed by a third person and awarded to the claimant.” The third effort resulted in the sale of additional personal property that was sold for $111.75.219 The record is not clear as to what was levied or sold during these three collection efforts. Yet, the record does include one published notice for a sheriff’s sale of Rigdon’s personal property. Published in the Painesville Telegraph on February 22, 1838, it noted:
SHERIFF’S SALE: BY Virtue of an Execution issued by the Clerk of the Court of Common Pleas of Geauga county, and to me directed, I shall expose to sale at the Inn of John Johnson in Kirtland, on Monday, the 5th day of March next, between the hours of 10 o’clock A M. and 4 P.M. of said day, the following described property, to wit: 2 Bureaus, 1 cupboard, 1 box stove, 1 table, 3 stands, 1 clock and case, 1 cradle, 3 looking glasses, 4 chairs, 4 window sashes, part box glass, 5 trunks and contents, 1 barrel dried fruit, 1 basket of clothing, a quantity of zinc, 1 pail, glass bottles, bedsteads, several rolls of paper, ribbons, hearth rug, carpeting; 1 bed & bedding, 2 waiters, quantity of books, 6 tin pans, 2 castors, knives and forks, 1 inkstand, 1 urn, 2 globes, 2 brass pin setts, 2 brass candlesticks; glass ware and crockery, and sundry other articles. Taken at the suit of S.D. Rounds vs. Sidney Rigdon.
ABEL KIMBALL, 2d, Shff.
Feb. 20, 1838.220
Sheriff Kimball forwarded the $604.50 to Grandison Newell. And $92.00221 of the $111.75 was apparently used to pay the fees incurred on these executions on Rigdon’s personal property. It is unclear what happened to the balance of $19.75, although it may have been applied to cover the costs assessed to Rounds for the voluntary dismissal of Parrish, Williams, Whitney, and Kingsbury.
In addition to executing on Rigdon’s personal property, Sheriff Kimball also started the process to sell an acre lot purportedly owned by Rigdon.222 Rigdon’s Trial Bill of Costs notes that by January 20, 1838, Sheriff Kimball had such real property appraised at $666.00. However, this lot remained unsold “by direction of Grandison Newell.”223
Why would Newell direct that this lot not be sold? This statement in January 1838 indicates that the court understood that the judgments now belonged to Newell and not to Rounds. Thus, perhaps the answer has to do with the fact that with the departure of Joseph Smith and Sidney Rigdon to Missouri, Newell was at that point negotiating the settlement of the judgments with William Marks224 and Oliver Granger,225 as agents for Joseph Smith and Sidney Rigdon.226 On March 1, 1838, the Rounds judgments were assigned to Marks and Granger for $1,600, as follows:227
For and in consideration of Sixteen hundred dollars to me in hand paid by William Marks and Oliver Granger I do hereby sell assign and set over to the Said William Marks and Oliver Granger two Judgments in favor of Samuel D. Rounds and assigned to me by said Rounds against Joseph Smith jr and Sidney Rigdon of one thousand dollars each which Judgments were obtained at the Court of Common Pleas holden at Chardon in and for the County of Geauga, to wit, on the 24th day of October 1837, and I do agree to pay all costs that has accrued on said Judgments up to this date.
Kirtland March 1st 1838 G. Newell
Attest Lyman Cowdery228
Neither Marks nor Granger left an explanation as to why they sought an assignment from Newell rather than some kind of satisfaction of judgment. One possible explanation was that the judgment was in the name of Rounds and not Newell, even though Newell was the purported owner. Another possible explanation was that by taking an assignment rather than a satisfaction, Marks and Granger stepped into the shoes of the plaintiff and thereby had an effective lien on all of Smith’s and Rigdon’s property that applied from the date of the judgment. In such a manner Marks and Granger could protect Smith’s and Rigdon’s property from subsequent judgment creditors.229
Recently uncovered records appear to indicate that payment on this assignment came in the form of two transfers of real property.230 The first was a transfer to Newell on March 1, 1838, by John and Nancy Isham231 of just under fifty acres located in Kirtland with a stated value of $1,300.232 An additional parcel of property was similarly conveyed to Newell on June 22, 1838, from Winslow and Olive Farr233 comprising eighteen acres with a stated value of $300.234
With his acceptance of this payment, Grandison Newell had been paid a total of $2,204.50.235 Pursuant to the assignment of claims, Newell assumed the costs incurred in the cases totaling $24.10 for Smith and $23.58 for Rigdon. The court record does not show that Newell ever paid these costs to the court. Thus, Newell netted from these lawsuits $2,156.82, which is $156.82 more than the total of the judgments. Moreover, of that amount, Newell was supposed to receive only 50 percent, with the other 50 percent going to the state of Ohio. Newell never forwarded any of this recovery to the state, as will be evidenced by his revival of these two judgments in 1859. Grandison Newell had collected more than 100 percent of the judgments, and under any ethical or legal analysis, this should have more than ended this lawsuit. Grandison Newell, however, revived these judgments in 1859 and used the law to commit a fraud on the state of Ohio long after the death of Joseph Smith in Illinois.
Part IV: Grandison Newell’s Fraud
Joseph Smith and his brother Hyrum were murdered while being held in a jail in Carthage, Illinois, on June 27, 1844. While many anticipated that with his death the demise of the church he founded would follow, the Church continued to weather various economic and political storms and grow under the leadership of Brigham Young and the Quorum of the Twelve.236 By 1846, persecution had reached a level forcing the Church to leave Illinois altogether. A massive migration commenced in early 1847, ending in the Great Salt Lake Valley in what would become the Utah Territory. Brigham Young presided over the Church until his death in 1877.
The assignment of the two judgments entered against Joseph Smith and Sidney Rigdon by Grandison Newell in March 1838 should have marked the end of this case, with the exception of Newell forwarding to the State of Ohio 50 percent of his net recovery of $2,204.50. But the end of his vendetta was not nearly in sight, as the following documentary history now definitively demonstrates.237 Surely, as one biographer aptly noted, Newell considered himself the “Atilla the Hun to the Saints of Mormons.”238
Newell’s Cooption of the State’s Portion of the Judgment
Not only did Newell fail to forward the state’s portion of the recovery, but fifteen years following the death of Joseph Smith and more than twenty years after Smith had left Kirtland, Grandison Newell solicited the help of John R. French,239 his state representative from Painesville, to have the state’s portion of the recovery assigned to him, claiming that it was never recovered. Representative French introduced a bill to do just that during the Second Session of the Fifty-Third Ohio General Assembly held in Columbus, Ohio on February 4, 1859.240 The text of the bill, enacted under the title “An act for the relief of Grandison Newell” (the “Relief of Newell Act”), stated:
Whereas, Grandison Newell, of Lake county, Ohio, in 1838, at much personal expense, prosecuted indictments in the name of the state of Ohio against Sidney Rigdon and Joseph Smith, jr., in the court of common pleas in Geauga county, under the act entitled “an act to prohibit the issuing and circulating unauthorized bank paper,” passed January 27, 1816, and therein procured judgments against said Sidney Rigdon and Joseph Smith, jr., for the sum of one thousand dollars each; now, at the request of the said Grandison Newell, and that he may obtain reimbursement for his said expenses and outlays.
Section 1. Be it enacted by the General Assembly of the State of Ohio, That the said judgments be and they are hereby assigned to said Grandison Newell, and said Grandison Newell is hereby authorized for his own use and at his own charges and expense, in the name of the state of Ohio, to revive said judgments according to the course of proceedings of said court, have execution, or institute and prosecute any suits known to the laws of this state, and have process, means and final, for the collection of said judgments; provided, that in no event shall any costs or charges made under or by virtue of this act be paid from the treasury of the state or of the counties of Lake and Geauga.
Sec. 2. This act to be in force from and after its passage.
WILLIAM B. WOODS,
Speaker of the House of Representatives
E. BASSETT LANGDON,
President pro tem, of the Senate.
While the purpose of the Relief of Newell Act is perfectly clear, there are several curious issues or fictions raised by the act itself.
The first obvious fiction in the preamble is the omission of any reference to Samuel D. Rounds, the plaintiff in the original cases. The court record contains no transfer or assignment of the judgments rendered in favor of Rounds and the State of Ohio to Newell. The judgments were privately settled on March 1, 1838, when Newell entered into an assignment of the judgments for $1,600 from William Marks and Oliver Granger acting as agents for Smith and Rigdon, who had moved to Missouri. Yet this assignment was never filed with the court as a satisfaction of the judgments. Indeed, had such occurred it would have precluded Newell from fraudulently petitioning the Ohio legislature for the act to assign the state’s portion to him. And had Rounds informed Representative French that he was not the actual plaintiff, this knowledge may have proven problematic. Remember, Newell never hid from his friends that Rounds was nothing more than his straw man.241 He even claimed to have paid Rounds $100 to file the suits.242 And by the time the initial collections efforts were taken, even the court record evidenced that Newell was the driving force and was awarded the recovery from these efforts.
However, making this reality and its accompanying efforts known to the Ohio legislature may have proven problematic for several reasons. In particular, in 1823 the Ohio Supreme Court in Key v. Vattier recognized the common law rule against “maintenance.” As the court held, “Maintenance is defined to be an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money, or otherwise to prosecute or defend it. It is an offense against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression.”243 Indeed, the most common method of maintenance is the use of a straw man—paying a party to bring an action for you. This is exactly what Newell did with Rounds. Newell paid Rounds to bring the case against Joseph Smith and Sidney Rigdon for him. As Bouvier pointed out, one that commits maintenance “is punishable by fine and imprisonment.” 244 Had Newell accurately explained to Representative French that what he wanted was to be assigned the judgments obtained by Rounds, to which Newell had provided “maintenance” for bringing the case for his benefit, Newell would have run the real risk that French would have rightfully refused to entertain giving him any such help and might even have subjected himself to possible criminal prosecution.
The second fiction in the preamble of the Relief of Newell Act is that Newell had pursued the action “at much personal expense.” What expense? Costs were incurred in the various Rounds cases. First, in the four suits that were nonsuited by Rounds prior to trial, costs were assessed against Rounds totaling $30.28. The court record shows that this amount was never paid. Second, when Newell assigned the judgments to Marks and Granger for $1,600, he agreed “to pay all costs that has accrued on said judgments up to this date.”245 These costs totaled $24.10 against Joseph Smith and $23.58 against Sidney Rigdon. The court record shows that these amounts too were never paid. While these costs are specified in the court record, they were offset by the $604.50 that Newell received from the sale of Rigdon’s personal property and the $1,600 he recovered from Marks and Granger through the acceptance of real property. The fact is, these lawsuits were never a “personal expense” for Newell, but a significant moneymaker.
The third fiction in the preamble is the notation that the cases involved “prosecuted indictments in the name of the state.” This factual inaccuracy must be first viewed within the context that the cases were brought under the Act of 1816 that had been suspended by section 23 of the Act of 1824.246 Yet, even had the Act of 1816 been enforced during the time that these cases were brought, the cases were not brought under the criminal prong of the Act of 1816. As previously discussed, the Act of 1816 provided two available methods to bring a claim. Section 5 of the Act of 1816 articulated these two alternative methods: “That all fines and forfeitures imposed by this act, may be recovered by action of debt or by indictment, or presentment of the grand jury,247 and shall go one half to the informer where the action is brought, and the other half in aid of the public revenue of this state; but where the same is recovered by indictment or presentment, the whole shall be to the use of the state.” Under this section, when a case was brought by a citizen the case was a civil matter brought under the writ of an “action of debt.”248 When it was brought by the state by way of a grand jury, it was a criminal matter brought under an “indictment or presentment.” There is no dispute that the Rounds cases were all brought as civil suits based on actions of debt.249
Furthermore, the cases were not brought “in the name of the state.” Reuben Hitchcock, Rounds/Newell’s lawyer, had asked his father, Peter Hitchcock, who was then sitting on the Ohio Supreme Court, how the caption of the case should be stated, whether it should be brought in the name of the state or in the name of Samuel Rounds.250 While we do not have Peter Hitchcock’s response, applicable law indicated that in both cases it should have been brought in the name of the state.251 Yet this is not what Reuben Hitchcock chose to do. One could suppose that Newell feared that if the case were brought in the name of the state, with Rounds only as the “informer,” then having the proceeds go to him might be more problematic. Such fears are supported indirectly by another letter Reuben Hitchcock wrote to his father asking about whether as the county prosecutor he had any conflict in dismissing Warren Parrish from the case, thereby foregoing seeking the $1,000 fine against Parrish.252 In any event, the facts are replete that the case was never a criminal proceeding involving indictments brought by the state.
Reviving the 1838 Judgment against Joseph Smith
Even though the act’s preamble was littered with fictions, the General Assembly of Ohio passed the act that assigned the judgments to Grandison Newell. The act acknowledged that the judgments would need to be revived because they were nearly twenty-two years old. Newell would have to go to court to so revive the judgments and, if revived, to pursue collections on them. Interestingly, the legislature seemed to take some pains to make sure that Newell could not come back to it and seek any further relief, noting “that in no event shall any costs or charges made under or by virtue of this act be paid from the treasury of the state or of the counties of Lake and Geauga.”253 After waiting nearly twenty months before doing anything with the Relief of Newell Act,254 Grandison Newell filed a motion on October 30, 1860, to have the judgments revived in the Geauga County Court of Common Pleas. Ironically, William Perkins, who had been the attorney for Joseph Smith and Sidney Rigdon in the underlying case, filed this new motion and now was representing Grandison Newell.255
Appointment of an Administrator
Yet the acceptance of this motion needed to be preceded by one other court action, namely, the appointment of an administrator over Joseph Smith’s estate. Lord Sterling,256 probate judge257 of Geauga County, made the appointment.
Ohio law required that any action brought before an Ohio court against the estate of a person who had died without a will needed to be brought against a duly appointed administrator.258 Joseph Smith did not leave a will when he died in Illinois, and for Ohio purposes, the appointment of an administrator was governed by statute. Ohio’s “Act to provide for the settlement of the estates of deceased persons” (hereafter cited as Probate Act) was enacted in 1840 and was the operative law in 1860.259 Section 1 of the Probate Act provided that the probate could be opened either where the deceased died or in “any county in which there is any estate to be administered.”260 Section 12 of the Probate Act provided for the appointment of an administrator “of an estate of an intestate.” Selection of the individual entitled to be appointed was determined by the following order of priority: “First: His widow, or next of kin, or both, as the court may think fit.”261 This section further provides that if the widow or next of kin does “not voluntarily either take or renounce the administration, they shall, if resident within the county, be cited by the court, or notified by a party in interest, for that purpose.” This first priority did not apply in this case because neither Emma Smith nor any of Joseph Smith’s next of kin lived within Geauga County where this proceeding was filed. “Secondly: . . . the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.”262 Using a creditor as an administrator, however, is conditioned on first finding that “the person so entitled [for example, the widow or next of kin] to administration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect, without sufficient cause, to take the administration of the trust. Thirdly: If there be no such creditor . . . the court shall commit administration to such other person as they shall think fit.”263
On October 29, 1860, Henry Holcomb was appointed by the Lake County Probate Court264 as the administrator over the estate of Joseph Smith. Just who was Henry Holcomb and how did he qualify to be Smith’s administrator? The answer is another strange twist in Newell’s elaborate fraud and use of straw men. Henry Holcomb265 was the grandson-in-law of Grandison Newell, Holcomb having married Emily Sawyer, Newell’s granddaughter.266 Newell would live with the Holcombs for the last eighteen years of his life in Painesville, Ohio.267 Holcomb recalled about his appointment: “Sometime after the passage of the bill [the Relief of Newell Act] Mr. Newell asked me if I would act as administrator of the Joe Smith estate; that in order to get a title to the property it would be necessary to have an administrator appointed; but that it would consume but little of my time as he and Mr. Perkins would transact the business. About all I would have to do would be to sign papers.”268
Holcomb later recounted: “Upon solicitation of Mr. Newell (who was my wife’s maternal grandfather and a member of my family for eighteen years) to act as administrator on the Joseph Smith estate (he and Hon. Wm. L. Perkins, who was equally interested, to do all the legal business and bear half of the expense), I became administrator.”269 Holcomb then mentioned “a statement of the transaction” that “was handed to me by Mr. Perkins some time afterwards.” In pertinent part, it discloses, “At this place in the original is written in pencil, in my hand writing, the following words and figures, I paid to Holcomb $5.00.”270 Holcomb commented on this payment:
I do not think I ever received anything for services as administrator of the “Joe” Smith estate. I remember that Mr. Newell offered me $5.00 but I declined to receive it as I had done nothing to earn it. I must have signed papers, but the only business transaction I remember in connection with it was to go to the Court House at the advertised hour and cry off the property from the porch. The only one present were Mr. Perkins, who bid in the property, Mr. Newell, Auditor B.D. Chesney, and myself. It may be that Mr. Newell paid me the $5.00 afterwards when we had our yearly settlement. Mr. Newell, I remember, was as persistant in wanting to pay me the money as I was in declining.271
Neither Newell nor Holcomb left any explanation as to why Newell wanted Holcomb to be appointed as administrator. Yet again, like Samuel Rounds, Holcomb was nothing more than a straw man for Newell. And again the crime of maintenance appears to have been committed by Newell.272
But did Holcomb actually qualify as the administrator for Joseph Smith’s estate? Section 12 of the Probate Code provides some answers. Certainly Holcomb was not kin of Joseph Smith, and thus does not qualify under the first priority for an administrator. Should any efforts have been made to notify the widow or next of kin that an administrator was needed in cases where the widow or next of kin resided outside the county where the probate was filed? Perhaps not, but the 1832 Ohio Supreme Court in Dixon v. Cassell called for some extra effort by the court of common pleas “if the estate exceeds one hundred dollars in value.”273 In a case such as this, which had attracted interest in the state legislature, one might have expected the court to extend some courtesy to the Joseph Smith family.
Under the second priority, “any person” who is a creditor of the deceased can be appointed to serve as an administrator. Holcomb, however, was not a creditor of Joseph Smith. The Ohio Supreme Court in Bustard v. Dabney discussed the propriety of selecting a creditor to serve as administrator and held that “where the heirs and representatives reside in another state, and where no letters of administration have been taken in Ohio . . . the creditor may himself take letters of administration, and thus have complete remedy at law.”274 Under applicable statute and case law, then, the next appropriate administrator in this matter was not Holcomb, but Grandison Newell. Yet Newell stayed in the shadows and proposed the appointment of Holcomb. Such appointment was made under the catch-all provision of Section 12, which allowed the Court to appoint “such other person as they shall think fit,” presumably if no administrator could be found of higher priority.
And so, Holcomb, at the request of both Newell and his attorney, Perkins, was appointed administrator of the estate of Joseph Smith. The record simply noted: “on the 29th day of October AD 1860 one Henry Holcomb was duly appointed and qualified as administrator of the Estate of the said Joseph Smith Jr.”275
Once appointed as administrator, the law required Holcomb to provide a bond, “with two or more sufficient sureties, in such sum as the court shall order, payable to the state of Ohio.”276 The purpose of the bond was to make sure the administrator properly managed the deceased estate. Responsibilities included: (1) to provide an inventory of the deceased property to the court within three months following his appointment, (2) to administer, according to applicable law, the assets of the deceased to his debts, (3) to provide an accounting of his actions within eighteen months following his appointment, (4) to pay any balance of the assets to heirs or where the court may direct, and (5) to notify the court should a will be discovered.277 Holcomb secured an “Administrator’s Bond”278 for $500 on the day of his appointment, with Grandison Newell and Thomas Wilder279 as sureties. However, as Holcomb readily admitted, he did virtually nothing to comply with these enumerated responsibilities.
Holcomb’s Scant Performance as Administrator
The judgment against Joseph Smith was more than twenty-two years old. Under Ohio law, after five years a judgment became dormant and was no longer a lien on any of the debtor’s property.280 To pursue collections on a dormant judgment first required that the judgment be “revived.”281 A revival was done by motion and required the “consent of such representatives or successor” if the debtor was deceased.282 Newell moved to revive only the judgment against Joseph Smith in the Geauga Court of Common Pleas. No explanation is given as to why a similar motion was not filed against Sidney Rigdon. While the Relief of Newell Act had assigned both of the judgments to Newell and while the assignment of the judgments from Newell to Marks and Granger was never filed with the court, the Geauga Court of Common Pleas did include notations about collection efforts against Rigdon. These efforts included three executions on Rigdon’s personal property, for which a total of $716.25 was recovered.283 As this was itself more than half of the total judgment, it would make sense that Newell would not move to revive the Rigdon judgment and thereby raise the issue about his prior successful collections efforts.
Filed by William Perkins on October 30, 1860, the motion to revive the judgment against Joseph Smith was straightforward:
And now comes the said Grandison Newell by his attorney and it appearing to the Court that said Judgment has been assigned to and is the property of the said Grandison Newell. That due notice of this motion has been served on Henry Holcomb Administrator of said Joseph Smith Jr and that said Administrator consents that said motion be heard and determined at this Court and that said administrator admits the facts stated in said motion and shows no cause why said Judgment should not be revived it is ordered that the said Judgment of the said Samuel D Rounds for the State of Ohio as well as for himself against the said Joseph Smith Jr. rendered at the October Term 1837 of this Court for one thousand dollars Debt and twenty three dollars and thirty five cents costs of suit be and the same is hereby revived against the said Henry Holcomb as such administrator of the said Joseph Smith Jr. deceased and that execution issue in the name of the said Samuel D Rounds for the benefit of the said Grandison Newell against the said Henry Holcomb as such administrator to be levied of the goods and chattels284 of the said Joseph Smith Jr. at the time of his death, and also his costs herein taxed at two dollars and fifty one cents.285
A notice from Henry Holcomb was attached to the motion to revive the judgment against Joseph Smith. It perfunctorily noted:
I Henry Holcomb Admr of Joseph Smith Jr acknowledge Notice that the above motion will be made to Court aforesaid now in [space] Session and consent that the same may be heard and determined at the present term And admit that the facts stated in said motion are true
Painesville Oct 30. 1860 H Holcomb
The Geauga County Court of Common Pleas was held in Chardon, the county seat, with Judge Horace Wilder presiding.286 Holcomb apparently did not even appear in court with Newell during the term of court, but rather signed the above-quoted notice in Painesville, Lake County, where he resided.
This motion was brought in accord with existing law that required that a request for revival was to be made by motion,287 and because the facts and request were “made by the consent of the parties,” the court was empowered to immediately revive the judgment.288 The court ordered the revival of the judgment against Joseph Smith in the amount of $1,000, plus $23.35 in costs as was originally awarded in October 1837 (hereafter cited as revived judgment).
While on its face this revival appears properly obtained, there appears to be one glaring omission—what about any notice that might have been given to Joseph Smith’s widow, Emma Smith, or his then living children, Julia M. Smith, Joseph Smith III, Frederick G. Smith, Alexander H. Smith, and David Hyrum Smith?289 No notice was ever sent to them regarding the revival of the judgment against their husband and father, Joseph Smith. And the law indeed required such notice. Section 406 of the Code of Civil Procedure290 provided for just this situation:
When plaintiff shall make an affidavit, that the representatives of the defendant, or any of them in whose name the action may be ordered to be revived, are non-residents of the State, or have left the same to avoid the service of the order, or so concealed themselves that the order cannot be served upon them, or that the names and residences of the heirs or devisees of the person against whom the action may be ordered to be revived, or some of them, are unknown to the affiant, a notice may be published for six consecutive weeks, as provided by section seventy-two,291 notifying them to appear on a day therein named, not less than ten days after the publication is complete, and show cause why the action should not be revived against them; and if sufficient cause be not shown to the contrary, the action shall stand revived.
Emma Smith and her children were all living in Nauvoo, Illinois, in 1860.292 This being the case, it is uncertain whether publishing notice as required in a paper circulated in Geauga or Lake Counties would have provided Emma Smith or her children actual notice of the proceedings in any event.
Petition to Sell Lands Supposedly Owned by Joseph Smith
Grandison Newell would wait almost another year before taking any efforts to collect on the revived judgment against Joseph Smith. On September 19, 1861, Henry Holcomb, as administrator for Joseph Smith’s estate, by William Perkins, now acting as the administrator’s attorney, filed a “Petition to Sell Lands” with the probate court for Lake County.293 Probate Judge Milton Canfield294 presided over these proceedings, Probate Judge Lord Sterling’s term having expired in February 1861. The Petition to Sell Lands represented to the court that “there is no personal property of the decedent in said County or state within his Knowledge.” This representation complied with existing law that required that any personal property be first levied before real property could be sold to satisfy a judgment.295 Yet, how could Holcomb actually make this representation? As previously discussed, Holcomb did nothing as the administrator but sign pleadings prepared by Newell and Perkins.296 But despite this failure, the representation was most likely true, for Joseph Smith had left Kirtland more than twenty-three years previously and had never returned to Ohio.
The Petition to Sell Lands sought to sell two parcels: The first was a thirteen-acre parcel (the “13-Acre Property”) that included parts of lots 29, 41, and 42 in Kirtland Township.297 Joseph Smith acquired the 13-Acre Property from Samuel Canfield298 on October 1, 1836, for $500.299 It does not appear that this property was transferred out of Joseph Smith’s name during his lifetime, thereby indeed making it available for execution by a creditor of his estate. The only caveat is a small portion of this property located on lot 29 (a sliver along the southern border of this lot encompassing 79⁄160 of an acre). That sliver of property was conveyed by Smith to William Marks on April 7, 1837, and then transferred back to Smith, as “Sole Trustee in Trust” for the Church on February 11, 1841. There is no explanation as to why only that portion of lot 29 was so transferred and not the rest of this property. One could suppose that the intention was to transfer all of this property to Marks, as was done with other properties owned by Smith at the time, but the legal description was incomplete. Regardless of the intentions, the record appears clear that all but 79⁄160 of an acre remained in Joseph Smith’s name from the date of transfer on October 1, 1836, through Newell’s collection efforts in 1862.
The second parcel was clearly the real object of Newell’s efforts.300 While just more than an acre, the Petition to Sell Lands appropriately noted, after giving the legal description,301 that this “is the same land on which stands the ‘Mormon Temple’ so called.” As one might expect, the land upon which the Kirtland Temple was built has an interesting history, not the least of which is the consequences of this litigation.302 One might assume that the land that included the Kirtland Temple (hereafter cited as Temple Property) was a sizable parcel. Instead, the parcel from the outset was just a bit more than an acre—just enough land to include the footprint of the temple303 along with the print shop that was directly behind the temple. In Newell’s Petition to Sell Lands, he identifies the basis upon which he asserts that the Temple Property belonged to Joseph Smith: “the following described real Estate situated in said Kirtland township deeded by John Johnson to said Joseph Smith Jr., by deed dated the 4th day of January 1837.”304
A review of the chain of title (see appendix D) that included this deed is critical to understand whether in fact Joseph Smith owned the Temple Property in 1861 when Newell sought to have it sold to satisfy the revived judgment. The Temple Property was part of a large parcel of property that Turhand Kirtland305 acquired from the Connecticut Land Company306 in 1799.307 Kirtland would sell just more than 51 acres of this large parcel, including the Temple Property, to Peter French308 on July 2, 1827.309 Peter French sold 103 acres, including the 51 acres to Joseph Coe310 on April 10, 1833.311 Coe was appointed to be the agent for the Church in acquiring this property.312 The purchase price was $5,000 with a $2,000 down payment and the $3,000 balance on two $1,500 promissory notes, the first due in one year and the second in two years.313 John Johnson provided the down payment from the sale of his farm in Hiram, Ohio. Coe transferred the Temple Property to Newel K. Whitney & Co. on June 17, 1833.314 Whitney had joined the Church in November 1830. In 1831, he was made bishop for the Church in Kirtland. By revelation on June 4, 1833, Whitney in his capacity as bishop was given the stewardship over the Temple Property.315 Construction of the Kirtland Temple began on June 5, 1833, and the edifice was dedicated on March 27, 1836.
These transfers are straightforward and make sense. However, things became more complicated when on May 5, 1834, nearly a year later, John Johnson deeded to Joseph Smith the Temple Property.316 The deed specified in what capacity Joseph Smith received the Temple Property: “Joseph Smith Junior President of the Church of Christ organized on the 6th of April, in the year of our Lord, one thousand eight hundred and thirty, in the Township of Fayette, Seneca County and State of New York, and was called the church of the Latter day saints . . . and his successors in the Office of Presidency of the aforesaid Church” (emphasis added). This deed is significant in two respects. First, it is coming from John Johnson. A review of the prior deeds reveals that John Johnson’s name does not appear. While he made the down payment, as part of the transaction between Peter French and Joseph Coe in April 1833, the actual conveyance was individually to Coe. However, any question as to the validity of Johnson’s legal claim to the Temple Property was resolved on September 23, 1836, when Newel K. Whitney conveyed a large tract of property that included the Temple Property to Johnson.317
Under the legal doctrine of “estoppel by the deed,” Johnson receiving the Temple Property from Newell K. Whitney validated, confirmed, and ratified the May 5, 1834, conveyance by Johnson of the Temple Property to Joseph Smith. The Ohio Supreme Court in 1831 explained this legal doctrine: “The obligation created by estoppel not only binds the party making it, but all persons privy to him; the legal representatives of the party, those who stand in his situation by act of law, and all who take his estate by contract, stand in his stead, and are subjected to all the consequences which accrue to him. It adheres to the land, is transmitted with the estate; it becomes a muniment318 of title, and all who afterward acquire the title take it subject to the burden which the existence of the fact imposes on it.”319
This doctrine is directly applicable to Johnson’s conveyance of the Temple Property to Joseph Smith before Johnson actually acquired a legal interest320 in the property. This issue was corrected two years later when Newel K. Whitney conveyed the Temple Property to Johnson. Had no other conveyance ever taken place, Joseph Smith, in his capacity as President of the Church, had clear title to the Temple Property the moment Johnson received the property from Whitney. However, John Johnson conveyed the Temple Property again to Joseph Smith on January 4, 1837, noting that the prior deed to Smith “is supposed to be illegal, for which reason this last deed is executed.”321 This redeeding to Joseph Smith was undoubtedly based on Johnson having deeded the property to Smith before he actually acquired title to it. This redeeding, however, was legally unnecessary to cure any deficiency that may have been found in the prior conveyance based on the doctrine of estoppel by the deed.
The January 4, 1837, transfer from Johnson to Smith created another issue. Rather than conveying it to Joseph Smith in his capacity as President of the Church, as was noted in the May 5, 1834, deed,322 Johnson simply conveyed the Temple Property to Joseph Smith. This conveyance had no legal effect on what or how Joseph Smith received the Temple Property, since Johnson in his May 5, 1834, deed had already deeded his entire interest in the Temple Property and this transfer was ratified under the doctrine of estoppel by the deed when Johnson received the Temple Property from Whitney on September 23, 1836.
On April 10, 1837, Joseph Smith conveyed the Temple Property to William Marks323 along with several other properties at the same time.324 Marks held the Temple Property and other properties and used some of these properties to settle obligations of Joseph Smith and the Church after Smith had left Ohio in January 1838. On February 11, 1841, William Marks conveyed the Temple Property back to Joseph Smith as “sole Trustee in trust for the Church of Jesus Christ of Latter day Saints.”325 Smith held the Temple Property in this capacity until his murder in Carthage, Illinois, on June 27, 1844.326
Based on these conveyances, Joseph Smith’s only “claim” to the Temple Property would be either (1) in his capacity as “President of the Church of Christ organized on the 6th of April, in the year of our Lord, one thousand eight hundred and thirty, in the Township of Fayette, Seneca County and State of New York, and was called the church of the Latter day saints . . . and his successors in the Office of Presidency of the aforesaid Church,” that he received from John Johnson on May 5, 1834, or (2) acting as “sole Trustee in Trust for the Church of Jesus Christ of Latter day Saints,” as he received the Temple Property back to him from William Marks on February 11, 1841. In either event, Joseph Smith did not have a personal or individual right, claim, or interest in the Temple Property. His interest was as a fiduciary for the Church. And it appears that at the time of his death this was understood by all the people involved.
For example, the leadership of the Church understood this as evidenced by the recorded conveyances by successor trustees of the Church after his death.327 His widow, Emma Smith, and the executors and administrators of his estate also understood this by the fact that the Temple Property was never included as property of Joseph Smith during the probate of his estate. Finally, Joseph Smith III actually bought the Temple Property in 1873328 rather than making any claim of inheritance. Ironically, in 1879 the Reorganized Church of Jesus Christ of Latter Day Saints (now the Community of Christ) initiated a lawsuit claiming ownership of the Temple Property on the basis that at the time of Smith’s death he was holding the Temple Property as trustee to the church he founded and that the Reorganized Church was “the legal true and legitimate successor of the Original Church of Jesus Christ of Latter Day Saints.”329
Petition and Sale of the Temple Property
With this complicated background in mind, we can return to the steps taken next by Grandison Newell to have the Temple Property sold to satisfy the judgment. In the Petition to Sell Lands prepared by Perkins, the basis for Joseph Smith’s ownership of the Temple Property was described as “deeded by John Johnson to said Joseph Smith Jr by deed dated the 4th day of Januay 1837.” Newell’s choice to make the claim that Smith owned the Temple Property by way of the January 4, 1837, deed from John Johnson was not a random decision. As discussed above, the only time that Joseph Smith was deeded the Temple Property personally was the January 4, 1837, deed from Johnson. Consequently, so long as one looks only at this deed, a colorable claim that Smith personally owned the Temple Property and therefore the property was part of Smith’s estate is created. Yet such an assertion materially misrepresents the true nature of the rights that Joseph Smith had in the Temple Property. Consider the following material omissions: On May 5, 1834, John Johnson conveyed all of his interest in the Temple Property to Joseph Smith. This conveyance was subsequently ratified by the doctrine of estoppel on the deed when Johnson was deeded the Temple Property by Newel K. Whitney on September 23, 1836. Thus, when Johnson redeeded the Temple Property to Smith on January 7, 1837, Johnson had nothing more to convey. When Johnson conveyed the Temple Property to Smith on May 5, 1834, he specified that Smith received the property as “President of the Church of Christ . . . and his successors in the Office of Presidency of the aforesaid Church.” Joseph Smith never owned the Temple Property. He always held the Temple Property in trust for the Church.
Despite this reality, Perkins chose to omit these facts as he prepared the Petition to Sell Lands. Holcomb never truly acted as an administrator for the estate of Smith in reviewing independently whether such a claim was true and instead affirmatively represented to the state that “the said decedent died seized in fee simple of the following real estate situated in the Township of Kirtland in Lake County in the State of Ohio. . . .” And so with that representation, the process moved forward to have the Temple Property sold as a personal asset of Joseph Smith.
Part of this process was the need to determine exactly what was owed under the revived judgment. Pursuant to applicable law, interest accrued on his judgment at six percent per annum.330 No interest accrued on the costs.331 On October 24, 1861, Holcomb filed with the probate court a “Statement of Debts.” The only debt that he reported was the one “assigned by Rounds and the State of Ohio to Grandison Newell.” The statement noted that the judgment was entered on October 14, 1837, and revived on October 22, 1861, and that the “balance due principal & interest” was $1,347.46. How this total was calculated is uncertain. Had Newell applied the statutory simple interest of six percent per annum by the number of years between the entry of the judgment and its revival of just more than twenty-four years, the principal and interest due would have been $1,444. Despite this difference, per Newell’s calculation, $1,347.46 was now due and collectible.
Another complicating factor in the sale of the property would be the “dower” interest that Joseph Smith’s widow, Emma, had if in fact Joseph Smith owned the Temple Property as claimed by Newel. A dower interest is the wife’s interest upon the death of her husband of one-third of the value of the land and improvements obtained during the marriage.332 This issue was addressed in the Petition to Sell Lands333 as required by law:334
Your petitioner prays that the said Emma and her said husband, and the said Joseph Smith son & heir of said decedent, & his other heirs if there shall be found to be others, may be made parties defendants to this petition; that the dower of the said Emma may be set off to her in each of said parcels of land respectively, that your petitioner may be ordered to sell said real estate, or so much thereof as he shall find necessary to the payment of the debts of the deceased and expenses of Administration, & for suit others & further relief as the court shall find him entitled to.
Holcomb further represented to the court by an attached affidavit that these persons to be added to the probate “reside out of state and at Nauvoo in the State of Illinois.”335 Under applicable law, when defendants were out of state, notice of the petitioned sale could be made “by publication of the object and prayer of the petition, four weeks successively previous to the term of the court at which an order of sale will be asked, in some newspaper of general circulation in the county where the deceased last dwelt.”336
Starting on September 25, 1861, and running for four consecutive weeks in The Press and Advertiser,337 a newspaper printed in Painesville, the following legal notice was printed:
EMMA, widow of Joseph Smith, Jr., and her husband, and Joseph Smith, son of said Joseph Smith, Jr., and the other heirs of said Joseph Smith, Jr., deceased, are hereby notified that Henry Holcomb, Adm’r of the said Joseph Smith, Jr, has filed in the Probate Court of Lake County, Ohio a petition for the sale of the real estate of said decedent, and will in pursuance of the prayer of said petition, on the 24th day of October, 1861, or as soon thereafter as Counsel can be heard, ask for an order for the assignment of dower to the said Emma, widow of the said Joseph Smith, Jr., in and for the sale of the following real estate, of which the said Joseph, Jr, died seized, or so much thereof as may be necessary for the payment of his debts, to wit, parts of lots 29, 41 and 42 of tract No. 1, situate in Kirtland Township, in said County, containing thirteen acres of land, more or less, deeded by Samuel Enfield to said decedent. Also part of lot thirty, in said township, deeded by John Johnson to the decedent, containing one acre and 154 ½ rods, being the same land on which the “Mormon Temple,” so called, stands.
Adm’r of Joseph Smith, Jr., deceased.
WM. L. PERKINS, Att’y. Dated Sept. 23, 1861.338
The printing of this legal notice was filed with the probate court on October 24, 1861. At the same time, the probate court appointed per statute three appraisers339 to appraise340 both the 13-Acre and Temple Properties and entered an order to these appraisers “to proceed, after having been duly sworn as affirmed, set off and assigns to Emma widow of Joseph Smith Jr. by metes and bounds, (or especially as of rents and profits, in case no division can be made,) one full equal third part of value of the following described real estate as her dower.”341 However, by November 6, 1861, the probate court was informed that Guy Smith, one of the three appraisers, “is temporarily absent from his home” and therefore “unable to perform his duties as such appraiser.”342 The court replaced Guy Smith with A. S. Richards, as “a judicious disinterested freeholder of the vicinity.” The three appraisers were, therefore, A. S. Richards,343 George Frank,344 and Reuben Harmon,345 and they entered into an oath that “they would, upon actual view, honestly and impartially assign dower, and appraise the real estate of Joseph Smith Jr., deceased, in pursuance of the within order of the Probate Court of said County.”346
Ten days later, these three appraisers returned to the probate court and submitted their written report on the appraisal of the 13-Acre and Temple Properties. For the 13-Acre Property, including Emma Smith’s dower interest, the appraised value was $242.58. For the property “on which stands the ‘Mormon Temple’ so called,” the appraisers first concluded “we do find that said premises are entire, and that no division thereof can be made by metes and bounds and do therefore set off and assign to the said Emma as for her dower therein, the sum of four and 11⁄100 dollars yearly during her life,347 being one third part of the clear annual rents issues and profits of said premises.”348
That means that the appraisers determined that the fair rent for the Kirtland Temple was just more than $12.00 per year. While this number does seem extremely low, it should be noted that there are no records indicating that Emma Smith ever received even this small amount during her life.
The appraisers secondly concluded that the fair market value of the Temple Property, “subject to said encumbered by the payment of said sum (the dower) at three hundred twenty-five dollars.” By statute the appraisers were paid $1.00 each for their services.349 On February 3, 1862, the court accepted the appraisals and ordered the sale subject to proper advertisement.350
Notice of the sale required advertising the sale in a newspaper located in the county where the property was located for four successive weeks. This was done starting on February 6, 1862, by publishing the notice of sale for the two parcels under the title “Administrator’s Sale” in the Painesville Telegraph and then republishing it on February 13, 20, and 27, 1862. This notice provided “on the fourth day of March 1862, between the hours of 2 and 3 o’clock P.M., in the town of Painesville, Lake County, Ohio, at the door of the Court House,351 will be sold to the highest bidder the following real estate, as the property of Joseph Smith, Jr., deceased.”352
On March 4, 1862, the sale of the two properties took place as advertised. Henry Holcomb recounted about the sale: “On the day and hour advertised for the sale of the temple and land, I went to the Court House and standing near the round wooden columns in front,353 rather noisily cried off the temple and land, while Mr. Perkins—who with Mr. Newell and Benjamin D. Chesney, County Auditor—very quietly bid them in.”354
William Perkins was the only bidder on both parcels. As reported to the probate court, “William L. Perkins having bid for the premises first in the petition [the 13-Acre Property] described One Hundred and sixty three Dollars and being the best and highest bidder, & the same being more than two thirds of the appraised value thereof, I struck off and sold the same to him for that sum.”355
The sale conformed to the applicable law that provided that improved property could “not be sold for less than two thirds of the appraised value; and if not improved, for less than one half the appraised value.”356 On April 18, 1862, the court confirmed that all steps had been properly completed for the sale of the property.357 Perkins bid the exact minimum amount to buy the property, using as credit the revived judgment against Joseph Smith. The Temple Property was similarly sold: “And the said William L. Perkins having bid for the premises secondly in the Petition described Two Hundred and seventeen Dollars, and he being the best and highest bidder therefor; & the same being more than two thirds of the appraised value thereof, I struck off and sold the said last mentioned premises to him for that sum.”358
The Report of Sale was duly signed by “H. Holcomb, Admr of Joseph Smith Jr., Decd.” The Kirtland Temple was sold for $217, on a credit bid. Perkins purchased both properties by using the revived judgment—hence the credit bid—thereby not having to expend any actual money.
The sale further confirmed that William Perkins, Joseph Smith’s attorney during the underlying action and then Grandison Newell’s attorney in the revival and collection on the judgment from that action, was indeed in partnership with Newell. Henry Holcomb would remove all doubt as he included in his papers immediately following his description of the sale:
Some time before Mr. Perkin’s death he handed me a paper and said it was a memorandum of the Joe Smith estate business, and that I ought to keep it. The following is a copy:
Statement of Joe Smith’s judgment its avails & division between G. Newell & Wm L. Perkins.
G. Newell paid expenses costs and taxes $27.69 Perkins paid expenses and taxes $2.72 = 24.97. Half of the surplus is 12.48. Perkins refunded to Mr. Newell premium and policy on his house 9.00 cash paid to him 3.48 = $12.48.
The Temple and lot was sold – $150.00 of which there was paid down $50.00 which was equally divided. For the balance B. Whitney & others gave note at 1 year due May 1, 1863. 1863, May 1st and after the note paid to Perkins $160.00.359
13 acres was sold to H. Dixon for his note for $150.00 which was paid to Perkins July 1st 1863. 106 + 156.00360
Of this Perkins is to pay Rich $10.00, Newell is to pay Frank $25.00 = 35.00—221.00361 This is to be equally divided. Each should receive this sum net $110.50.
1863 June 1st Paid Newell $40.50. July 30, $95.00 = $135.00, out of which Newell pays French $25.00 = $110.50, and whatever Holcomb charges Perkin and Newell are to pay equally.
Signed Wm L. Perkins and G. Newell.362
The Report of Sale of the two lots was filed with the probate court363 on April 18, 1862. The probate court confirmed the sale364 of the parcels that same day.365 An administrative deed executed by Henry Holcomb, as administrator of the Joseph Smith estate, transferred the 13-Acre and Temple Properties to William Perkins on April 19, 1862.366 On the same day, Perkins and his wife, Margaretta, sold and transferred the Temple Property by way of a quitclaim deed to Russell Huntley for $150.00.367 The following year, Perkins sold the 13-Acre Property to H. Dixon, also for $150.
As shown in appendix D, Russell Huntley368 owned the Temple Property for more than ten years. During that time he spent considerable money in repairs to the temple.369 On October 15, 1866, he sold a small portion (approximately a quarter of an acre) of the Temple Property to Lucius Williams, also by quitclaim.370 He then conveyed this small piece of land to Seth Williams on May 10, 1869.371 During his ten-year ownership of the Temple Property, Huntley moved to DeKalb County, Illinois,372 where he met and became friends with Joseph Smith III373 and Mark Forscutt.374 Huntley sold the remaining portion of the Temple Property, which included the Kirtland Temple, to Joseph Smith III and Mark H. Forscutt for $150.00 on February 17, 1873, also by way of quitclaim.375 It was through this series of transfers that the Reorganized Church of Jesus Christ of Latter Day Saints made their initial and most significant claims of ownership of the Kirtland Temple.376
The Kirtland Temple is often viewed as the highest point of the Mormon experience in Kirtland, Ohio. The Kirtland Safety Society has been viewed as the lowest. And yet these two divergent experiences are connected in a most unlikely way. No longer can it be genuinely debated whether or not the legal proceedings brought by Grandison Newell’s straw man, Samuel Rounds, against the directors of the Safety Society were legally flawed. Indeed, they were brought under an 1816 statute regarding the issuance of banknotes that had been suspended in 1824. The remedy sought under that 1816 statute was thus legally unavailable. Nevertheless, and on that ground alone, judgments were entered by a trial court against Joseph Smith and Sidney Rigdon in October 1837.
No legal actions were brought against any officers or directors of the Safety Society for fraud, negligence, or breach of fiduciary duty. Indeed, the directors made concerted efforts to shore up the Society, as banks were failing all over the country. Notice had been given to the public that the Society was not operating as a bank chartered by the legislature of the state of Ohio but rather was operating as a joint stock company, another regular legal form of business, similar to a general partnership. After the many consequences of the 1837 economic downturn, and fearing for their safety, Smith and Rigdon left Kirtland the night of January 12, 1838. Most Mormons left Kirtland by the following summer, leaving the recently finished Kirtland Temple behind. Smith and Rigdon left agents in Kirtland who settled the judgments with Grandison Newell and all other creditors who came forward.
Lacking a clear owner, the Kirtland Temple started to fall into disrepair in the 1840s. Then, based on several misrepresentations, Newell managed to get a personal favor pushed through the Ohio House of Representatives in 1859, even though he had failed to pay the state its portion of his recovery back in 1838. With the 1859 Act in hand, Joseph Smith’s perpetual nemesis then fraudulently revived the judgment more than fifteen years after Joseph Smith had been murdered in Illinois and the majority of the Mormons had trekked to the Great Salt Lake Basin. Unlawfully using yet another straw man, this time as supposed administrator of Joseph Smith’s estate, and without giving direct notice to survivors of Joseph Smith’s family or to other creditors, Grandison Newell then laid claim to the Kirtland Temple Property, even though Joseph Smith was not in its chain of title. In 1862, the property was then sold to William Perkins, who had been Joseph Smith’s lawyer in the 1837 litigation and who now was actually in partnership with Newell; he purchased the property at auction, bidding the exact minimum two-thirds of the appraised value. These miscarriages of justice and other unethical actions resulted in the Kirtland Temple being sold on a credit bid for $217 and then resold the same day for $150 to a local citizen, with the land being sold a year later for an additional $150. This new owner worked to save the temple for more than a decade until he sold it to Joseph Smith’s oldest son. The Reorganized Church of Jesus Christ of Latter Day Saints, under Joseph Smith III’s leadership, would thereafter preserve the Kirtland Temple.
Today the Kirtland Temple is owned and cared for by the Community of Christ. It stands as a monument to the early Saints of Kirtland. It is said that the Kirtland Temple is the most costly temple relative to the poverty of those that built it. That cost included all that was lost with the failure of the Kirtland Safety Society.
November 2, 1836, Minutes of the Kirtland Safety Society Bank and Articles of Organization377
Minutes of a meeting of the Stockholders of the Kirtland Safety Society Bank; held on the 2nd day of November, A. D. 1836. When the following preamble and articles were read three times by Orson Hyde, and unanimously adopted.
We the Stockholders of the Kirtland Safety Society Bank, for the more perfect government and regulation of the same, do ordain and establish the following constitution.
ARTICLE I. The capital stock of said Bank shall not be less than four millions of dollars; to be divided into shares of fifty dollars each; and may be increased to any amount, at the discretion of the directors.
ARTICLE II. The management of said Bank shall be under the superintendence of thirty two directors, to be chosen annually by, and from among the Stockholders of the same; each Stockholder being entitled to one vote for each share, which he, she or they may hold in said Bank; and said votes may be given by proxy or in propria persona.
ARTICLE III. It shall be the duty of said directors when chosen to elect from the number a President, Cashier, and chief Clerk. It shall be the further duty of said directors to meet in the Director’s Room, in said Banking house, on the first Mondays of November and May of each year at 9 o’clock A. M. to inspect the books of said Bank, and transact such other business as may be deemed necessary.
ARTICLE IV. It shall be the duty of said directors to choose from among their number six men, who shall meet in the Banking house on Tuesday of each week, at 4 o’clock P. M. to examine all notes presented for discounting, and enquire into, and assist in all matters pertaining to the Bank.
ARTICLE V. Each director shall receive from the Bank one dollar per day for his services when called together at the semi-annual and annual meetings. The President, Cashier, chief Clerk and the six, the committee of the directors, shall receive a compensation for their services as shall be agreed by the directors at their semi-annual meetings.
ARTICLE VI. The first election of directors as set forth in the second article, shall take place at the meeting of the Stockholders to adopt this constitution, who shall hold their office until the first Monday of November, 1837 unless removed by death, or misdemeanor, and until others are duly elected. Every annual election of directors shall take place on the first Monday of November of each year.—It shall be the duty of the President, Cashier, and chief Clerk, of said Bank to receive the votes of the Stockholders by ballot, and declare the election.
ARTICLE VII. The books of the Bank shall be always open for the inspection of the Stockholders.
ARTICLE VIII. It shall be the duty of the officers of the Bank, to declare a dividend once in six months; which dividend shall be apportioned among the Stockholders, according to the installments by them paid in.
ARTICLE IX. All persons subscribing stock in said Bank shall pay their first installment at the time of subscribing; and other installments from time to time, as shall be required by the directors.
ARTICLE X. The directors shall give thirty days notice in some public paper, printed in this county, previous to an installment being paid in. All subscribers residing out of this State, shall be required to pay in half the amount of their subscriptions at the time of subscribing, and the remainder, or such part thereof as shall be required at any time by the directors after thirty days notice.
ARTICLE XI. The President shall be empowered to call special meetings of the directors, whenever he shall deem it necessary; separate and aside from the annual and semi-annual meetings.
ARTICLE XII. Two thirds of the directors shall form a quorum to act at the semi-annual meetings; and any number of the six, the committee of the directors, with the officers of the Bank, or any one of them may form a quorum to transact business at the weekly meetings; and in case none of the six are present at the weekly meetings the officers of the Bank must transact the business.
ARTICLE XIII. The directors shall have power to enact such by-laws as they may deem necessary from time to time, providing they do not infringe upon this constitution.
ARTICLE XIV. Any article in this constitution may be altered at any time, amended, added unto, or expunged by vote of two thirds of the Stockholders.
SIDNEY RIGDON, Ch’n,
Attest OLIVER COWDERY, Cl’k.
January 2, 1837, Minutes of the Kirtland Safety Society Bank and Articles of Agreement378
Minutes of a meeting of the members of the “Kirtland Safety Society,” held on the 2d day of January, 1837.
At a special meeting of the Kirtland Safety Society, two thirds of the members being present, S. Rigdon was called to the Chair, and W. Parrish chosen Secretary.
The house was called to order, and the object of the meeting explained by the chairman; which was:
1st. To annul the old constitution, which was adopted by the society, on the 2d day of November, 1836: which was, on motion, by the unanimous voice of the meeting, annulled.
2nd. To adopt Articles of Agreement, by which the Kirtland Safety Society are to be governed.
After much discussion and investigation, the following Preamble and Articles of Agreement were adopted, by the unanimous voice of the meeting.
We, the undersigned subscribers, for the promotion of our temporal interests, and for the better management of our different occupations, which consist in agriculture, mechanical arts, and merchandising; do hereby form ourselves into a firm or company for the before mentioned objects, by the name of the “Kirtland Safety Society Anti-Banking Company,” and for the proper management of said firm, we individually and jointly enter into, and adopt, the following Articles of Agreement.
Art. 1st. The capital stock of said society or firm shall not be less than four millions of dollars; to be divided into shares of fifty dollars each; and may be increased to any amount, at the discretion of the managers.
Art. 2d. The managers of said company shall be under the superintendence of thirty-two managers, to be chosen annually by, and from among the members of the same; each member being entitled to one vote for each share, which he, she, or they may hold in said company; and said votes may be given by proxy, or in adopria persona.
Art. 3d. It shall be the duty of said managers, when chosen, to elect from their number, a Treasurer and Secretary. It shall be the further duty of said managers to meet in the upper room of the office of said company, on the first Mondays of November and May of each year, at nine o’clock, A. M. to inspect the books of said company and transact such other business as may be deemed necessary.
Art. 4th. It shall be the duty of said managers to choose from among their number, seven men, who shall meet in the upper room of said office, on Tuesday of each week, at 4 o’clock, P. M. to inquire into and assist in all matters pertaining to said company.
Art. 5th. Each manager shall receive from the company one dollar per day for his services when called together at the annual and semi-annual meetings. The Treasurer and Secretary, and the seven, the committee of the managers, shall receive a compensation for their services as shall be agreed by the managers at their semi-annual meetings.
Art. 6th. The first election of managers, as set forth in the second article, shall take place at the meeting of the members to adopt this agreement, who shall hold their office until the first Monday of November, 1837, unless removed by death or misdemeanor, and until others are duly elected. Every annual election of managers shall take place on the first Monday of November, of each year. It shall be the duty of the Treasurer and Secretary of said company, to receive the votes of the members by ballot, and declare the election.
Art. 7th. The books of the company shall be always open for the inspection of the members.
Art. 8th. It shall be the duty of the managers of the company, to declare a dividend once in six months; which dividend shall be apportioned among the members, according to the installments by them paid in.
Art. 9. All persons subscribing stock in said firm, shall pay their first installment at the time of subscribing; and other installments from time to time, as shall be required by the managers.
Art. 10. The managers shall give thirty days notice in some public paper, printed in this county, previous to an installment being paid in. All subscribers residing out of the State, shall be required to pay in half the amount of their subscriptions at the time of subscribing, and the remainder, or such part thereof, as shall be required at any time by the managers, after thirty days notice.
Art. 11th. The Treasurer shall be empowered to call special meetings of the managers, whenever he shall deem it necessary; separate and aside from the annual and semi-annual meetings.
Art. 12. Two thirds of the managers shall form a quorum to act at the semi-annual meetings, and any number of the seven, the committee of the managers, with the Treasurer and Secretary, or either of them, may form a quorum to transact business at the weekly meetings; and in case none of the seven are present at the weekly meetings, the Treasurer and Secretary must transact the business.
Art. 13th. The managers shall have power to enact such by-laws as they may deem necessary, from time to time, providing they do not infringe upon these Articles of agreement.
Art. 14th. All notes given by said society, shall be signed by the Treasurer and Secretary thereof, and we the individual members of said firm, hereby hold ourselves bound for the redemption of all such notes.
Art. 15. The notes given for the benefit of said society shall be given to the Treasurer, in the following form:
“Ninety days after date, we jointly and severally promise to pay A.B. or order [blank] dollars and [blank] cents, value received.”
A record of which shall be made in the books at the time, of the amount, and by whom given, and when due—and deposited with the files and papers of said society.
Art. 16. Any article in this agreement may be altered at any time, annulled, added unto or expunged, by the vote of two-thirds of the members of said society; except the fourteenth article, that shall remain unaltered during the existence of said company. For the true and faithful fulfillment of the above covenant and agreement, we individually bind ourselves to each other under the penal sum of one hundred thousand dollars. In witness whereof we have hereunto set our hands and seals the day and date first written above.
Chronology of Legal Events
Case One: Rounds v. Smith, et al. (Geauga County Common Pleas)
Samuel Rounds (acting for Grandison Newell) brought a suit against Joseph Smith Jr., Sidney Rigdon, Warren Parrish, Frederick G. Williams, Horace Kingsbury, and Newel K. Whitney in a plea of debt claiming violation of §1 of the Act of 1816 that forbade banking without a valid charter granted by the legislature. • Feb. 8, 1837.
Writ of Summons issued against defendants. • Feb. 9, 1837.
Sheriff Abel Kimball left copy of the writ with Smith’s wife at his home. • Feb. 10, 1837.
Sheriff Abel Kimball left copy of the writ with Rigdon’s wife at his home. • Feb. 10, 1837.
Sheriff Abel Kimball left copy of the writ with Williams’s wife at his home. • Feb. 10, 1837.
Sheriff Abel Kimball served Kingsbury. • Feb. 10, 1837.
Sheriff Abel Kimball served Whitney. • undated.
Sheriff Abel Kimball served Parrish. • Mar. 17, 1837.
Returns of Summons are reviewed by court and case continued until the June term. Perkins & Osborn make appearance as counsel for defendants. • Mar. 21, 1837.
Rounds files his declaration (complaint) (date noted only in Kingsbury’s file). • Apr. 24, 1837.
Demurrers heard and denied. Motion to amend pleadings by defendants granted. Cases continued until Oct. term. • June 10, 1837.
All defendants excepting Smith and Rigdon nonsuited. Separate jury trial against Smith and Rigdon held both finding in favor of Rounds. Judgment of $1,000 and costs rendered against Smith and Rigdon, each. Smith and Rigdon filed Bills of Exception over the judgment. • Oct. 24, 1837.
Record of Judgment entered against Smith and Rigdon. • Oct. 25, 1837.
Fieri Facias writs issued against Smith’s and Rigdon’s real and personal property. • Nov. 6, 1837.
Part of lots 5 and 6 of block 114 in Kirtland City Plat in Kirtland, roughly one acre of land, levied to satisfy this judgment. The land was appraised at $666, and remained unsold by direction of Newell. • Jan. 20, 1838.
Notice of Sheriff’s sale of personal property belonging to Rigdon. • Feb. 20, 1838.
Sheriff’s sale of Rigdon’s goods. • Mar. 5, 1838.
Assignment of judgment from Newell to William Marks and Oliver Granger for $1,600. • Mar. 14, 1838.
Reported to the court that Newell received $604.50 for sale of property belonging to Rigdon that was auctioned by Sheriff Kimball, as well as a lot of approximately one acre in Kirtland appraised at $666.00, which remained unsold at the direction of Newell. • Apr. 3, 1838.
Case Two: Holcomb, Administrator of Smith, Widow & Heirs (Geauga County Common Pleas and Probate Court of Lake County)
“An Act for the Relief of Grandison Newell.” The Ohio Legislature assigned the state’s portion of both $1,000 judgments in 1837 qui tam cases (totaling $1,000) to Newell as “reimbursement” for expenses Newell claimed in having prosecuted cases (the “Judgment”). Act also permitted Newell to revive Judgments through the courts. • Mar. 10, 1859.
Henry Holcomb appointed as administrator of the Estate of Smith. • Oct. 29, 1860.
Motion to Revive the Judgment against Joseph Smith filed by Newell; Holcomb consented to the revival. • Oct. 30, 1860.
Court revived Judgment against Smith in favor of Newell in the amount of $1,000 and $23.35 costs plus any new costs. • Oct. 31, 1860.
Petition to Sell Lands filed by Holcomb with Emma Smith’s dower rights be set off in the sale. • Sept. 19, 1861.
Legal Notice to widow and heirs to be published in The Press and Advertiser. • Sept. 23, 1861.
Statement of Debts filed. Newell claimed $1,347.46, in principal and interest. • Oct. 22, 1861.
Appointment of Appraisers (A.S. Richards, George Frank, and Reuben Harmon [the “Appraisers”]). • Nov. 6, 1861.
Order of Appraisal ordering Appraisers to appraise two lots. The first totals 13 acres (“lot 1”) and the second of about one acre (includes the temple) (“lot 2”) in Kirtland Township. • Nov. 16, 1861.
Appraisal: Lot 1 = $242.58; lot 2 = $325.00. • Nov. 16, 1861.
Notice of Sale of lots 1 and 2, published in the Painesville Telegraph for four consecutive weeks; sale to be conducted on Mar. 4, 1862. • Feb. 4, 1862.
Sale of lots 1 and 2. • Mar. 4, 1862.
Petition to Sell Lands; lot 1 is sold to William Perkins for $163.00; lot 2 is sold to Perkins for $217.oo. • Apr. 18, 1862.
Deed to lots 1 and 2 to Perkins. • Apr. 19, 1862.
William L. Perkins conveyed lot 2 containing Kirtland Temple to Russell Huntley in a quitclaim deed. Retains lot 1, likely for his fees. • Apr. 19, 1862.
Huntley sold 5⁄16 of an acre (not including the temple) of lot 2 (“lot 2a”) to Lucius Williams. • Oct. 15, 1866.
Lucius Williams sold lot 2a to Seth Williams. • May 10, 1869.
Huntley sold the remainder of lot 2 (“lot 2b”) (including the temple) to Joseph Smith III and Mark H. Forscutt for $150. • Feb. 17, 1873.
Case Three: The Reorganized Church of Jesus Christ of Latter Day Saints (RLDS) v. Williams, et al. (Lake County Common Pleas)
Petition filed. • Aug. 18, 1879.
Request to issue Summons to Lucius Williams (crossed out) Sarah F. Videon. • Aug. 18, 1879.
Affidavit of Publication. • Aug. 18, 1879.
Summons to Sarah F. Videon. • Aug. 20, 1879.
Sheriff’s Return on service of Videon. • Aug. 20, 1879.
Notice of suit filed six consecutive weeks starting on Aug. 21, 1879, in the Painesville Telegraph (filed on Feb. 13, 1880). • Oct. 6, 1879.
Continuance of case. • Nov. 10, 1879.
Order of Dismissal. • Feb. 21, 1880.
Summary Chain of Title to the Temple Property
Thurland Kirtland to Peter French
(July 2, 1827)
Peter French to Joseph Coe/John Johnson
(April 10, 1833)
Joseph Coe/John Johnson to Newel K. Whitney
(June 17, 1833)
John Johnson to Joseph Smith, as “President of the Church of Christ”
(May 5, 1834)
Newel K. Whitney to John Johnson
(September 23, 1836)
John Johnson to Joseph Smith
(January 4, 1837)
Joseph Smith to William Marks
(April 10, 1837)
William Marks to Joseph Smith,
as “Sole Trustee for the Church of Jesus Christ of Latter Day Saints”
(February 11, 1841)
Probate Court of Lake County to William L. Perkins
(April 19, 1862)
William Perkins to Russell Huntley
(April 19, 1862)
Russell Huntley to Lucius Williams
(5⁄16 of an acre [not including the temple] of lot 2)
(October 15, 1866)
Russell Huntley to Joseph Smith III and Mark H. Forscutt (rest of lot 2)
(February 17, 1873)