The Kirtland Safety Society has long been the source of research and debate within the historical community.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. Charges of personal gain and illegality are sometimes included in their critique. 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. To do so, this article will be separated into four parts.
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.
Part I: 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.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, particularly in the Western Reserve and the rest of Ohio. Such shortages restricted economic growth, especially in frontier America. To fill this growing vacuum came a rapid increase in the use of banknotes. Banknotes are essentially a form of promissory notes. Promissory notes are negotiable debt instruments. However, between individuals the ability to use them as transferrable currency is very limited. “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.”
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,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. However, without the protections, regulations, or governance of a central banking system, these local banks were fragile financial institutions.
It is within this environment that the boom years of Kirtland in the early to mid-1830s occurred.With the significant influx of Mormons arriving in Kirtland throughout this time, Kirtland experienced unprecedented economic growth. 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. Yet, accompanying such growth was significant inflation. Land prices increased in Kirtland 500 percent between 1830 and 1837; in one year alone (1836–1837) food prices increased by 100 percent. Such inflation was further aggravated by a shortage of money. 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. Further, the Mormons were struggling to carry the debt associated with the building of the Kirtland Temple, coupled with the closure of the United Firm in 1834 and the various businesses being returned or given to its members.
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.”
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.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, in contrast to other local banks offering shares for between $100 and $400 per share. Small quarterly installment payments ($0.13 per share) further allowed more to participate. Shares were sold at a deeply discounted price, selling, on average, for $0.2625 per share, or .525 percent of the face value. 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. By the end of October 1836, the venture had attracted thirty-six subscribers or investors contributing more than $4,000. Joseph Smith and his family would become the largest investors in the Society, owning collectively 12,800 shares. 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. 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 directorswith 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 value
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.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. 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. While one might expect that, at a minimum, he could look to his state representatives and senator from Geauga County for assistance, these representatives did not sponsor the bill, and Senator Ralph Granger voted against the proposal. 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. 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.
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,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.
Joint stock companies had existed for centuries,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. Under the direction of Alexander Hamilton, the First Bank of the United States was founded in 1791 as a joint stock company. 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. 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, 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.”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. 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, 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. 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. 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. 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.”
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
With these changes in place, the leaders worked to open the Society in early January 1837.Within a week of opening, the venture had loaned its first installment of notes, totaling approximately $10,000 in $1s, $2s, and $3s. 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,a young lawyer in Akron, Ohio, 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. At the same time, Cartter executed a bond for the Society notes with Eliakim Crosby and James W. Phillips as sureties. Similar agreements were executed between the Safety Society and Ovid Pinney and Stephen Phillips on March 14, 1837.
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.Rural banks had capital tied up in land and generally could not turn assets into cash fast enough to meet notes presented for redemption. The nation was beset with land speculation, and the Saints were not immune from it. 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.” 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.
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.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. That vote, closing this first door, came on the same day that Joseph Smith and others arrived in Monroe, Michigan, 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.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. 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. Previously, to avoid a possible conflict of interest, Oliver Cowdery had resigned from the Society 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. 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.
Part II: 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.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. 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.In fact, all the banks in Michigan would close, some temporarily and some permanently. This financial crisis resulted in Michigan enacting what would be the nation’s first “free banking” laws. Enacted on March 15, 1837, this act removed altogether the requirement that a bank needed a state-approved charter. 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.
Banks throughout Ohio were similarly decimated. On June 29, 1837, the Bank of Geauga closed.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.
A second blow to the Society came in May 1837 with disagreement (including disaffection) with various Mormon leaders,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. 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. 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. 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. Parrish in particular appears to have abused his position as the president of the Society, replacing Sidney Rigdon. Parrish was accused of massive malfeasance during his tenure as president, including forgery and embezzlement.
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,
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 lossesin addition to the numerous parties who held Kirtland Safety Society notes. Yet only one action was filed against Joseph Smith, and that was by his nemesis, Grandison Newell, 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 sessionwith the granting of a corporate charter to the Miami Exporting Company on April 15, 1803, for the purpose of exporting agricultural products and banking, including the right to issue notes. 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. 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.”
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.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.” 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.” 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.” 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.” 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.
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.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.” 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.” 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.” 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.
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”).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.”
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.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. 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.
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.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. Reed 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.
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.”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.”
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.
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. Roundsinitiated 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. Samuel Rounds sued as a straw man for Grandison Newell. Newell later reportedly said that he paid Rounds $100 to bring the cases. 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. These suits were specifically brought under the Act of 1816, alleging damages as provided under section 1 of $1,000 in each case. These suits were also brought as qui tam suits as provided for in section 5 of the Act of 1816 that allowed the informer—who here was Rounds—to recover 50 percent of the fine imposed. Rounds retained Reuben Hitchcock to represent him in this action. Hitchcock was also the state prosecutor for Geauga County. Consequently, Hitchcock was the attorney for Rounds, as well as the State of Ohio. Each suit was captioned Samuel D. Rounds v. [Defendant].
Rounds had writs of summonsordered by Presiding Judge Van R. Humphrey and issued on February 9, 1837, by the court clerk, David D. Aiken, 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 debt 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.’”
Sheriff Abel Kimballserved the summons on the defendants. 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.
On April 24, 1837,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. 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.
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.”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.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 Perkins and Salmon S. Osborn, understood, as they filed demurrers in each case to be heard during the June 1837 term. 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.
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 counsel
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].” 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.” 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.”
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.”
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.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. The answers filed by the defendants are also not extant. 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.The cases were argued before a four-judge bench, including presiding judge Van R. Humphrey, and associate judges John Hubbard, Daniel Kerr and Storm Rosa. 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.” Entering default to dismiss these actions conformed to Ohio law.
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.”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
the control over the suits? Have I any authority, where the County is not directly interested in the collection of money? If Rounds should not direct 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.
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.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, and that the def[endan]t recov[e]r against him his costs.” In each case, costs were assessed against Rounds, as follows:
|Case||Court Costs||Attorney’s Fees|
|Rounds v. Parrish||$2.15||$5.00|
|Rounds v. Williams||$2.15||$5.00|
|Rounds v. Whitney||$2.15||$5.00|
|Rounds v. Kingsbury||$3.53||$5.00|
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.A twelve-man jury tried both. 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, and $2.25 for witnesses in Rigdon’s trial. Witnesses subpoenaed and/or sworn to appear were paid $0.75 per day, as of June 1837, an increase from $0.50 per day. 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.
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”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.” 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 exceptions 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.
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.Within thirty days following the trial of the case, the party appealing (the appellant) “shall enter into a bond to the adverse party, with one or more good and sufficient sureties, to be approved of by the clerk of such court, in double the amount of the judgment . . . and costs, in case a judgment or decree should be entered in favor of the appellee.” 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, the appellant would prepare a writ of error based on the bill of exceptions to be issued by the Supreme Court. 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.
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.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.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. 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 costsand $0.75 in defendant’s costs. Judgment against Rigdon totaled $1,023.58, comprising the $1,000 penalty under the Act of 1816, $22.77 in plaintiff’s costs and $0.81 in defendant’s costs.
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.”Smith and Rigdon left that night for Missouri, but before they left they arranged for the payment of their debts and obligations. Their families followed shortly thereafter.
Collecting on judgments in Ohio was governed by statute.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.” Personal property was only encumbered upon seizure. By statute the court initiated the collection process by issuing a writ of fieri facias. 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. 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.” 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.” Thirty-day notice of the sale of land was also required.
While it does not appear from the record that Sheriff Kimball was successful in collecting anything from Joseph Smith,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. 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.
Sheriff Kimball forwarded the $604.50 to Grandison Newell. And $92.00of 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.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.”
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 Marksand Oliver Granger, as agents for Joseph Smith and Sidney Rigdon. On March 1, 1838, the Rounds judgments were assigned to Marks and Granger for $1,600, as follows:
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 Cowdery
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.
Recently uncovered records appear to indicate that payment on this assignment came in the form of two transfers of real property.The first was a transfer to Newell on March 1, 1838, by John and Nancy Isham of just under fifty acres located in Kirtland with a stated value of $1,300. An additional parcel of property was similarly conveyed to Newell on June 22, 1838, from Winslow and Olive Farr comprising eighteen acres with a stated value of $300.
With his acceptance of this payment, Grandison Newell had been paid a total of $2,204.50.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.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.Surely, as one biographer aptly noted, Newell considered himself the “Atilla the Hun to the Saints of Mormons.”
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,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. 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.He even claimed to have paid Rounds $100 to file the suits. 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.”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.” 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.”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.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, 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.” 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.
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.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. 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. 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.”After waiting nearly twenty months before doing anything with the Relief of Newell Act, 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.
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,probate judge 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.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. 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.” 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.” 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.” 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.”
On October 29, 1860, Henry Holcomb was appointed by the Lake County Probate Courtas 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 Holcomb was the grandson-in-law of Grandison Newell, Holcomb having married Emily Sawyer, Newell’s granddaughter. Newell would live with the Holcombs for the last eighteen years of his life in Painesville, Ohio. 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.”
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.”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.” 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.
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.
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.”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.”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.”
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.”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. Holcomb secured an “Administrator’s Bond” for $500 on the day of his appointment, with Grandison Newell and Thomas Wilder 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.To pursue collections on a dormant judgment first required that the judgment be “revived.” A revival was done by motion and required the “consent of such representatives or successor” if the debtor was deceased. 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. 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 chattelsof the said Joseph Smith Jr. at the time of his death, and also his costs herein taxed at two dollars and fifty one cents.
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.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,and because the facts and request were “made by the consent of the parties,” the court was empowered to immediately revive the judgment. 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?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 Procedure 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,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.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.Probate Judge Milton Canfield 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. 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. 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.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.Joseph Smith acquired the 13-Acre Property from Samuel Canfield on October 1, 1836, for $500. 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⁄
The second parcel was clearly the real object of Newell’s efforts.While just more than an acre, the Petition to Sell Lands appropriately noted, after giving the legal description, 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. 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 temple 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.”
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 Kirtlandacquired from the Connecticut Land Company in 1799. Kirtland would sell just more than 51 acres of this large parcel, including the Temple Property, to Peter French on July 2, 1827. Peter French sold 103 acres, including the 51 acres to Joseph Coe on April 10, 1833. Coe was appointed to be the agent for the Church in acquiring this property. 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. 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. 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. 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.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.
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 munimentof title, and all who afterward acquire the title take it subject to the burden which the existence of the fact imposes on it.”
This doctrine is directly applicable to Johnson’s conveyance of the Temple Property to Joseph Smith before Johnson actually acquired a legal interestin 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.” 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,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 Marksalong with several other properties at the same time. 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.” Smith held the Temple Property in this capacity until his murder in Carthage, Illinois, on June 27, 1844.
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.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 1873 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.”
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.No interest accrued on the costs. 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.This issue was addressed in the Petition to Sell Lands as required by law:
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.”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.”
Starting on September 25, 1861, and running for four consecutive weeks in The Press and Advertiser,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.
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 appraisersto appraise 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.” 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.” 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, George Frank, and Reuben Harmon, 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.”
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, being one third part of the clear annual rents issues and profits of said premises.”
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.On February 3, 1862, the court accepted the appraisals and ordered the sale subject to proper advertisement.
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,will be sold to the highest bidder the following real estate, as the property of Joseph Smith, Jr., deceased.”
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,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.”
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.”
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.”On April 18, 1862, the court confirmed that all steps had been properly completed for the sale of the property. 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.”
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.
13 acres was sold to H. Dixon for his note for $150.00 which was paid to Perkins July 1st 1863. 106 + 156.00
Of this Perkins is to pay Rich $10.00, Newell is to pay Frank $25.00 = 35.00—221.00This 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.
The Report of Sale of the two lots was filed with the probate courton April 18, 1862. The probate court confirmed the sale of the parcels that same day. 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. 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. The following year, Perkins sold the 13-Acre Property to H. Dixon, also for $150.
As shown in appendix D, Russell Huntleyowned the Temple Property for more than ten years. During that time he spent considerable money in repairs to the temple. 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. He then conveyed this small piece of land to Seth Williams on May 10, 1869. During his ten-year ownership of the Temple Property, Huntley moved to DeKalb County, Illinois, where he met and became friends with Joseph Smith III and Mark Forscutt. 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. 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.
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.
Jeffrey N. Walker received his JD from Brigham Young University and has practiced law for more than twenty-five years. He currently is a senior advisor for the Joseph Smith Papers Project for The Church of Jesus Christ of Latter-day Saints and is the manager and coeditor of its Legal and Business Series. He is a Trustee and Treasurer for the Mormon Historic Sites Foundation and managing editor of Mormon Historical Studies. Walker also is an adjunct professor in the J. Reuben Clark Law School and has taught in the Church History and Doctrine Department at Brigham Young University.
November 2, 1836, Minutes of the Kirtland Safety Society Bank and Articles of Organization
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 Agreement
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)
1. See, for example, Karl R. Anderson, Joseph Smith’s Kirtland: Eyewitness Accounts (Salt Lake City: Deseret Book, 1989), 193–223; Ronald K. Esplin, “Joseph Smith and the Kirtland Crisis,” in Joseph Smith, the Prophet and Seer, ed. Richard Neitzel Holzapfel and Kent P. Jackson (Provo, Utah: Religious Studies Center, Brigham Young University; Salt Lake City: Deseret Book, 2010), 54–58, 261–90; Marvin S. Hill, C. Keith Rooker, and Larry T. Wimmer, “The Kirtland Economy Revisited: A Market Critique of Sectarian Economics,” BYU Studies 17, no. 4 (1977): 391–475; Scott H. Partridge, “The Failure of the Kirtland Safety Society,” BYU Studies 12, no. 4 (1972): 437–54; D. Paul Sampson and Larry T. Wimmer, “The Kirtland Safety Society: The Stock Ledger Book and the Bank Failure,” BYU Studies 12, no. 4 (1972): 427–36; Mark L. Staker, Hearken, O Ye People (Salt Lake City: Greg Kofford Books, 2009), 463–543; Mark L. Staker, “Raising Money in Righteousness: Oliver Cowdery as Banker,” in Days Never to Be Forgotten: Oliver Cowdery, ed. Alexander L. Baugh (Provo, Utah: Religious Studies Center, Brigham Young University, 2009), 143–253.
2. Dale W. Adams, “Chartering the Kirtland Bank,” BYU Studies 23, no. 4 (1983): 467; Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (Urbana: University of Illinois Press, 2001), 58; J. H. Kennedy, Early Days of Mormonism (Charles Scribner’s Sons, 1888), 164–66; Dean A. Dudley, “Bank Born of Revelation: The Kirtland Safety Society Anti-Banking Company,” Journal of Economic History 30, no. 4 (1970): 848–53.
3. Fawn M. Brodie, No Man Knows My History: The Life of Joseph Smith, the Mormon Prophet (New York City: Vintage Books, 1995), 196–98; D. Michael Quinn, “Echoes and Foreshadowings: The Distinctiveness of the Mormon Community,” Sunstone 3 (March–April 1978): 16; Jim Whitefield, The Mormon Delusion, vol. 3 (Raleigh, N.C.: Lulu Press, 2009), 42–44; John Hammond, Crisis in Mormon Kirtland: A Temple and an Illegal Bank, vol. 5 (CreateSpace, 2013), 310–14.
4. The author appreciates the insights, research, and resources on this topic from his colleagues at the Joseph Smith Papers Project and the Church History Department, including Gordon Madsen, John Welch, Ronald Esplin, Mark Staker, Elizabeth Kuehn, Brent Rogers, Joseph Darowski, Christian Heimburger, and Mark Ashurst-McGee.
5. Parts I–III, which provide the necessary backdrop for part IV, track the author’s article “Looking Legally at the Kirtland Safety Society,” in Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch, Sustaining the Law: Joseph Smith’s Legal Encounters (Provo, Utah: BYU Studies, 2014), 179–226, with certain updates and editorial improvements being made here.
6. Alexander Hamilton, under George Washington, established the first national or central bank in 1791. It had a twenty-year charter. The second central bank of the United States was established in 1816, six years after the charter of the first national bank had expired. It also had a charter for twenty years to expire in 1836. Andrew Jackson not only fought to prevent a renewal but also to close it early by executive order, by ending the deposits of government funds into it. Bray Hammond, “Jackson, Biddle, and the Bank of the United States,” Journal of Economic History 7, no. 1 (1947): 1–23; Hugh T. Rockoff, “Money, Prices, and Banks in the Jacksonian Era,” in The Reinterpretation of American Economic History, ed. R. W. Fogel and Stanley Engerman (New York: Harper and Row, 1971), ch. 33; Harry N. Scheiber, “The Pet Banks in Jacksonian Politics and Finance, 1833–1841,” Journal of Economic History 23, no. 2 (1963): 196–214; George R. Taylor, Jackson versus Biddle: The Struggle over the Second Bank of the United States (Boston: D. C. Heath, 1949); Peter Temin, The Jacksonian Economy (New York: W. W. Norton, 1969), 196; Donald B. Cole, The Presidency of Andrew Jackson (Lawrence: University Press of Kansas, 1993), 95–120, 188–200; Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990), 132–72.
7. Herman E. Krooss, American Economic Development (Englewood Cliffs, N.J.: Prentice-Hall, 1955), 206 (“As a general proposition, the American economy was characterized by a chronic shortage of capital and capital funds”); Partridge, “Failure of the Kirtland Safety Society,” 442. Indeed, the scarcity of gold, silver, and other precious metals is the reason for their value. William M. Gouge, A Short History of Paper Money and Banking in the United States (Philadelphia: T. W. Ustick, 1833), part 1, pp. 8–10.
8. George W. Knepper, Ohio and Its People: Bicentennial (Kent, Ohio: Kent State University Press, 2003), 133.
9. “The attitude was, essentially, that ‘the East won’t finance us and if they do, they will kill us with interest.’ The conclusion that frontier communities should finance themselves, whatever their hard equity, was not unique to Kirtland.” Firmage and Mangrum, Zion in the Courts, 54. “Two things that were holding back the development of the [Western] Reserve were transportation and a medium of exchange—money and credit. It would have been out of character for these pioneering Americans to fail to overcome these obstacles.” Harlan Hatcher, The Western Reserve: The Story of New Connecticut in Ohio (Cleveland: World Publishing Co., 1966), 118.
10. “Although a promissory note, in its original shape, bears no resemblance to a bill of exchange [a banknote]; yet, when indorsed, it is exactly similar to one; for then it is an order by the indorser of the note upon the maker to pay to the indorsee. The indorser is as it were the drawer; the maker, the acceptor; and the indorsee, the payee. Most of the rules applicable to bills of exchange, equally affect promissory notes.” John Bouvier, A Law Dictionary (Philadelphia: T. & J. W. Johnson, 1839), s.v. “promissory note.”
11. The ability to exchange banknotes for specie was considered “one of the greatest practical improvements which can be made in the political and domestic economy of any State, and . . . such convertibility was a complete check against over issue.” Gouge, Short History of Paper Money, ix. For a detailed examination of banking practices at the time, see George Tucker, The Theory of Money and Banks Investigated (Boston: Charles C. Little and James Brown, 1839).
12. Partridge, “Failure of the Kirtland Safety Society,” 444; see Joseph Chitty, A Treatise on the Law of Bills of Exchange, Checks on Bankers, Promissory Notes, Banker’s Cash and Bank Notes (Philadelphia: P. Byrne, 1803), 165–710.
13. Charles C. Huntington, “A History of Bank and Currency in Ohio before the Civil War,” Ohio Archaeological and Historical Quarterly 24 (1915): 235–539.
14. “A bank’s function was to provide working capital to ‘bridge the gap between seedtime and harvest, between purchase of raw materials and the sale of the finished product,’ between purchase on one place and sale in another.” Howard Bodenhorn, State Banking in Early America: A New Economic History (New York: Oxford University Press, 2003), 46, quoting John A. James, Money and Capital Markets in Postbellum America (Princeton, N.J.: Princeton University Press, 1978), 59–60.
15. As Paul B. Trescott summarized, “During the 1830s boom-and-bust banking was particularly prevalent in two regions, one bounded by upstate New York, Ohio and Michigan, and the other on the southern frontier.” Financing American Enterprise (New York: Harper and Row, 1963), 24; Gouge, Short History of Paper Money, part 1, p. 133.
16. In providing their analysis of the rise and fall of the Kirtland Safety Society, Hill, Rooker, and Wimmer opined: “Previous historical accounts of the Kirtland Economy have overlooked the fact that Smith provided his creditors with assets, that he was buying and selling land at market prices, and that the economic reversals in the Kirtland economy involved a change in economic conditions that ‘reasonably prudent’ economic men probably would not have anticipated.” Hill, Rooker, and Wimmer, “Kirtland Economy Revisited,” 394.
17. Hill, Rooker, and Wimmer, “Kirtland Economy Revisited,” 408–9, conclude that the population growth in Kirtland rose from “approximately 1,000 inhabitants in 1830 to a peak of 2,500 in 1837 (an increase of 150 percent).”
18. Oliver Cowdery reported in “Our Village,” Messenger and Advocate 3 (January 1837): 444: “Our streets are continually thronged with teams loaded with wood, materials for building the ensuing season, provisions for the market, people to trade, or parties of pleasure to view our stately and magnificent temple. Although our population is by no means as dense as in many villages, yet the number of new buildings erected the last season, those now in contemplation and under contract to be built next season, together with our every day occurrences, are evincive of more united exertion, more industry and more enterprise than we ever witnessed in so sparse a population, so far from any navigable water and in this season of the year.”
19. Hill, Rooker, and Wimmer, “Kirtland Economy Revisited,” 397, note that with the opening of the Ohio Canal in 1833, by 1840 the population of then existing towns had nearly tripled and the increase in volume of trade in wheat and flour increased tenfold.
20. Hill, Rooker, and Wimmer, “Kirtland Economy Revisited,” 411.
21. Anderson, Joseph Smith’s Kirtland, 210.
22. Firmage and Mangrum, Zion in the Courts, 54.
23. Rich McClellin, “The Kirtland Economy, a Broader Perspective,” presented at the Mormon History Association Annual Meeting, Killington, Vermont, May 2005, 10–11, copy in possession of the author.
24. Estimates on the debt incurred for the Kirtland Temple range from $20,000 to 30,000 (Truman Cole, “Mormonism,” Cincinnati Journal and Western Luminary, August 25, 1835, 4) to more than $100,000 (George A. Smith, “Gathering and Sanctification of the People of God,” Journal of Discourses, 26 vols. [Liverpool: F. D. Richards, 1855–86], 2:213, March 18, 1855); Staker estimates the cost of the Kirtland Temple to be around $40,000 (Staker, “Raising Money in Righteousness,” 143, 193).
25. For a general discussion about the United Firm, see Max H Parkin, “Joseph Smith and the United Firm: The Growth and Decline of the Church’s First Master Plan of Business and Finance, Ohio and Missouri, 1832–1834,” BYU Studies 46, no. 3 (2007): 5–66.
26. Painesville Republican, January 19, 1837.
27. Staker, “Raising Money in Righteousness,” 201 n. 26; Joseph Young to Lewis Harvey, November 6, 1880, Church History Library, The Church of Jesus Christ of Latter-day Saints, Salt Lake City (hereafter cited as CHL) (“The prophet had conceived a plan of instituting a Bank, with a view of relieving their financial embarrassment”). This decision may be hinted at by Oliver Cowdery’s mention of the firm of Draper, Underwood, which Cowdery noted was “ready to help incorporated bodies to plates and dyes” to print banknotes. “Dear Brother,” Messenger and Advocate 2 (September 1836): 375.
28. Sampson and Wimmer, “Stock Ledger Book,” 427–29.
29. Bodenhorn, State Banking in Early America, 19 (“Early bank shares typically had a par value of $400 or $500 . . . It was not until the end of the antebellum era that the early nineteenth-century vision of widespread bank share ownership was approached, even approximately”).
30. Staker, “Raising Money in Righteousness,” 153–55, 204–5 nn. 43–45.
31. Sampson and Wimmer, “Stock Ledger Book,” 429.
32. Frederick G. Williams, The Life of Dr. Frederick G. Williams: Counselor to the Prophet Joseph Smith (Provo, Utah: BYU Studies, 2012), 466–67.
33. Sampson and Wimmer, “Stock Ledger Book,” 427–28.
34. Stock Ledger of the Mormon Bank at Kirtland, Ohio, 1836–37, pp. 173–74, CHL.
35. Warren Cowdery editorialized that “the private property of stockholders [in the Society] was holden in proportion to the amount of their subscription, for the redemption of the paper issued by the bank.” Messenger and Advocate 3 (July 1837): 535.
36. Who exactly comprised these thirty-two directors is not known. Based on the records available, most of the members of the Quorum of the Twelve Apostles were included. For a discussion on this matter, see Staker, “Raising Money in Righteousness,” 205–6 n. 47.
37. Par value determines the amount of capital that can be retained per share in the corporation. It has nothing to do with the actual or anticipated market value of the shares.
38. In retrospect, most would argue that sending Oliver Cowdery might have proven more successful in securing the charter because he had been significantly involved in Democratic politics in Ohio. Hyde’s selection appears to have been made principally on party affiliation and not capacity or connections or even interest. Adams, “Chartering the Kirtland Bank,” 471–72; Marvin S. Hill, “An Historical Study of the Life of Orson Hyde, Early Mormon Missionary and Apostle from 1805–1852” (master’s thesis, Brigham Young University, 1955), 106. Cowdery’s political activities as a Democrat included publishing a weekly political newspaper, the Northern Times, whose prospectus had it originally called the Democrat. He was active in both local and state Ohio politics. Cowdery had previously been the point person for Mormon politics in Ohio, having attended the state convention and served on several committees. However, instead of being sent to Columbus, Cowdery was tasked to finalize getting the printing plates for the Kirtland Safety Society. Leonard J. Arrington, “Oliver Cowdery’s Kirtland, Ohio, ‘Sketch Book,’” BYU Studies 12, no. 4 (1972): 414.
39. Hyde was occupied during most of this time assisting Jacob Bump in opening a merchant store in Kirtland from merchandise Bump had acquired from Joseph Smith. Jacob Bump to Joseph Smith Jr., Geauga County Property Deeds, December 5, 1836, book 22, p. 568, Geauga County Archives and Records Center, Chardon, Ohio; Jacob Bump Merchant Capital, Geauga County Tax Duplicates, Kirtland Chattel Tax 1837, Geauga County Archives.
40. Bodenhorn, State Banking in Early America, 12–18 (“Throughout the antebellum era, skill at navigating political waters remained key in obtaining a charter. . . . If political savvy or personal clout could not elicit a charter, there were more pedestrian methods of acquiring it. One was surreptitious bribery of one or more influential legislators; another was to exploit chronic budgetary concerns and, in effect, overtly bribe the entire legislature. . . . Bribery on this scale offends modern sensibilities, tainting early bank charters and making these banks’ promoters appear nefarious and their motives sinister”).
41. The state representatives were Seabury Ford (later governor of Ohio) and Timothy Rockwell. The state senator was Ralph Granger. All three were Whigs.
42. Journal of the Senate of the State of Ohio, 35th General Assembly (Columbus, Ohio, 1836); Staker, Hearken, O Ye People, 473.
43. History of Geauga and Lake Counties, Ohio (Philadelphia: William Brothers, 1878), 39, 41, 219–20, 250. Indeed, Senator Granger was the first mayor of Fairport in 1836.
44. Staker, “Raising Money in Righteousness,” 158. In contrast, at least two other ventures designed to issue notes in Geauga County were both read and introduced during this first legislative session, including the Ohio Rail Road Company that was approved by both the House and Senate to circulate notes, and the Fairport and Wellsville Railroad Company, Grandison Newell’s project. This company also received a charter and was approved to circulate notes. This railroad venture was an apparent result of having the Ohio Canal bypass Painesville. In an effort to overcome this perceived slight, Newell and his colleagues determined that having a railroad connection would eclipse the canal. Newell’s plan was to build a railroad from Fairport Harbor through Painesville to Wellsville on the Ohio River. McClellin, “Kirtland Economy,” 6–7. Newell was already one of the founders and a director of the Bank of Geauga headquartered in Painesville. County prosecutor Reuben Hitchcock and his father, Peter Hitchcock, a judge on the Ohio Supreme Court, also served as directors to the Bank of Geauga. Reuben Hitchcock would prosecute the case against Joseph Smith and others for operating the Kirtland Safety Society without a state charter.
45. The Ohio Observer noted in its March 2, 1837, issue in this regard: “An infidel lawyer was therefore called in to help them out of the difficulty, and by his advice the Revelation was mended so as to read: ‘The Kirtland safety society anti-Banking Co., promises to pay, &c.,’ and instead of signing the bills as President and Cashier, they signed them as Secretary and Treasurer.” The Ohio Observer was printed in Hudson, Ohio, just outside of Akron, Ohio, approximately thirty-seven miles from Kirtland. The author thanks Elizabeth Kuehn for this source.
46. “What was the special attraction of joint-stock banking? The note issue privilege was part of it, at least until deposit banking became a viable alternative. But Jack Carr and G. Frank Mathewson argue that the unlimited liability inherent in private banking created entry barriers. They argue that anything other than strictly limited liability creates barriers to entry. In effect, unlimited liability has a detrimental effect on the price of shares (partnership or joint-stock) of unlimited liability relative to limited liability firms.” Bodenhorn, State Banking in Early America, 198.
47. “Companies, not trading upon a joint stock, or, in other words, regulated companies, have existed from very early times. . . . The East India Company, which was established in 1599, was one of the first which traded upon a joint stock.” John Collyer, A Practical Treatise on the Law of Partnership (London: S. Sweet, 1840), 721.
48. Abdullah Yavas, “A Recount of the Early Joint Stock Companies and Securities Trading in the United States (1620s–1850s)” (March 28, 2012), available at http://ssrn.com/abstract=2030273 (accessed July 30, 2015).
49. Robert E. Wright and David J. Cowen, Financial Founding Fathers: The Men Who Made America Rich (Chicago: University of Chicago Press, 2006), 10–27. See generally note 6.
50. Ralph C. H. Catterall, The Second Bank of the United States (Chicago: University of Chicago Press, 1903), 1–22; Edward S. Kaplan, The Bank of the United States and the American Economy (Westport, Conn.; Greenwood Press, 1999), 49–66.
51. 17 U.S. 316, 4 Wheat. 316 (1819).
52. Collyer, Practical Treatise on the Law of Partnership, 730. “Those companies or societies, which are not confirmed by public authority, are, in fact, nothing more than ordinary partnerships, and the laws respecting them are the same; but the articles of agreement between the parties are usually very different. The capital is generally divided into a certain number of shares, whereof each partner may hold one or more; but he is restricted to a certain number. Any partner can also transfer his share, under certain limitations; but no partner acts personally in the affairs of the company; the execution of their business being entrusted to officers, for whom the whole company are responsible, though the superintendency of such officers is frequently committed to directors chosen from the body at large.”
As McCulloch further explains, “By an institution of this sort is meant a company having a certain amount of capital, divided into a greater or smaller number of transferable shares, managed for the common advantage of the shareholders by a body of directors chosen by and responsible to them. After the stock of a company of this sort has been subscribed, no one can enter it without previously purchasing one or more shares belonging to some of the existing members. The partners do nothing individually; all their resolutions are taken in common, and are carried into effect by the directors and those whom they employ.” J. R. McCulloch, A Dictionary, Practical, Theoretical and Historical of Commerce, 2 vols. (Philadelphia: Thomas Wardle, 1840), 1:455.
“[T]he company was intended to be a joint stock company. . . . Among these, provision was made for the annual election of three directors, on the first Monday of November, who were to have power to make all contracts and arrangements necessary to effect the objects of the company, to appoint officers and agents, and to make such rules and regulations as they should see fit. The stock of the company was to be transferable by assignment, by permission of the directors at one of their regular meetings, and dividends to be declared when the funds of the company should justify.” Rianhard v. Hovey, 13 Ohio 300, 301 (1844). See also Edward D. Ingraham, A Practical Treatise on the Law of Partnership (Philadelphia: Robert H. Small, 1837).
53. Collyer, Practical Treatise on the Law of Partnership, 731. “[C]orporate bodies have the power of binding their members by the acts resolved upon in the manner prescribed by their charters, which power they derive from their corporate character, and not from contract and agreement between themselves; on the other hand, voluntary associations are governed entirely by the rules which the parties have themselves agreed to.”
54. “Articles of Agreement,” Messenger and Advocate 3 (January 1837): 441–43.
55. “Several liability” means that any one partner can be sued for the complete amount owed by the partnership. Joint liability means that all partners can be required to pay or indemnify at least their share of the amount owed. “According to the common law of England, all the partners in a joint stock company are jointly and individually liable, to the whole extent of their fortunes, for the debts of the company. They may make arrangements amongst themselves, limiting their obligations with respect to each other; but unless established by an authority competent to set aside the general rule, they are all indefinitely responsible to the public.” McCulloch, Dictionary, 1:455.
56. Article 16 provided that “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.” In 1816, the legislature in Ohio passed an act to provide penalties for issuing banknotes without a charter. As part of that act, all such unauthorized bank shareholders or partners were made “jointly and severally answerable” (or liable) thereby effectively reforming the entity to a general partnership. An act to prohibit the issuing and circulating of unauthorized bank paper, Acts Passed at the First Session of the Fourteenth General Assembly of the State of Ohio (Chillicothe, Ohio: Nashee and Denny, 1816), p. 12–13, sec. 11, 12.
57. The preamble to the Articles of Agreement states this distinct purpose from banking: “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.” “Articles of Agreement,” Messenger and Advocate 3 (January 1837): 441.
58. Messenger and Advocate 3 (July 1837): 535.
59. These efforts included modifying the notes by crossing out “Cashier” and “President” replacing them with “Treasurer” and “Secretary,” respectively. Joseph Smith and Sidney Rigdon continued to execute notes with Newel K. Whitney and Fredrick Williams also signing notes as “pro tempore,” Latin for “for the time.” Also, stamps “Anti” and “ing” were made and the “Anti” and “ing” added to the name on the notes, thereby denoting “Anti-Banking.” This practice appears to have been short lived.
60. At this point the Kirtland Safety Society had collected approximately $4,000 cash. Banking practices at the time permitted leveraging the specie to cover 5–10 percent of the notes. Bodenhorn, State Banking in Early America, 291–92. The Kirtland Safety Society, therefore, could have extended notes totaling between $40,000 and $80,000 and remained in compliance with such practices.
61. David Kellogg Cartter (1812–1887) was born in New York and studied law in Rochester, New York, where he practiced for four years prior to moving to Akron, Ohio, in 1836. There he opened a law practice and continued to practice law after moving to Massillion, Ohio, just south of Akron. He moved to Cleveland in 1856. Samuel Lane, Fifty Years and Over of Akron and Summit County (Akron, Ohio: Beacon Job Department,1892), 552–53.
62. Akron, Ohio, is approximately forty-five miles southwest of Kirtland, Ohio.
63. Agent Agreement, January 14, 1837, Joseph Smith Collection, CHL. This agreement was executed by Joseph Smith, Sidney Rigdon, Frederick G. Williams, Reynolds Cahoon, David Whitmer, and Oliver Cowdery for the Society. It is in Rigdon’s handwriting.
64. Bond dated January 14, 1837, Joseph Smith Office Papers, CHL. Dr. Eliakim Crosby was one of the founders of Akron (previously named Cascade). James Phillips lived in Akron and was involved in banking activities in the area, including petitioning the Ohio legislature for a bank in Akron in 1835. Lane, Fifty Years and Over of Akron and Summit County, 41–43, 45, 538; William B. Doyle, Centennial History of Summit County, Ohio and Representative Citizens (Chicago: Biographical Publishing Co., 1908), 253–54.
65. Articles of Agreement, March 14, 1837, Joseph Smith Office Papers. This agreement was executed by Sampson Avard as agent for Joseph Smith and Sidney Rigdon, officers of the Society. Ovid Pinney and Stephen Phillips were early settlers and businessmen from Beaver County, Pennsylvania, and were tasked to market Society notes in Pennsylvania. They were given up to $40,000 in Society notes. Joseph H. Bausman and John S. Duss, History of Beaver County Pennsylvania and Its Centennial Celebration, vol. 2 (New York: Knickerbocker Press, 1904), 703–4, 738–40, 781–84, 797. On March 8, 1837, Warren Parrish executed a similar agreement with J. W. Briggs, a merchant in Painesville, Ohio, to act as an agent for the Safety Society in Painesville. Briggs was given only $1,000 in Society notes to market. Bond dated March 8, 1837, Joseph Smith Office Papers.
66. “I worked for Grandison Newell considerable. He used to drive about the country and buy up all the Mormon money possible, and the next morning go to the bank and obtain the specie. When they stopped payment he prosecuted them and closed the bank.” James Thompson, Statement, in Naked Truths about Mormonism (Oakland, Calif.: Deming, 1888), 3.
Newell would later boast how he had “run the Mormons out of the country.” Kennedy, Early Days of Mormonism, 168 n. Newell was a farmer, businessman, and banker from Painesville. Whether based on religious, financial, or political motives, Newell was one of the most well-known and active antagonists against the Church, especially Joseph Smith and his leadership. This included providing financing for Doctor Philastus Hurlbut’s 1833 trip to Palmyra to collect affidavits that were published in Eber D. Howe’s anti-Mormon book Mormonsim Unvailed [sic]: or, a Faithful Account of That Singular Imposition and Delusion, from Its Rise to the Present Time (Painesville, Ohio: By the author, 1834).
67. Herman E. Krooss, American Economic Development (Englewood Cliffs, N.J.: Prentice-Hall, 1955), 229.
68. Joseph Smith, History, 1838–1856, vol. B-1 [1 September 1834–2 November 1838], p. 761, CHL.
69. Dean C. Jessee, “The Kirtland Diary of Wilford Woodruff,” BYU Studies 12, no. 4 (1972): 383–84.
70. “A New Revolution—Mormon Money,” Painesville Telegraph, January 20, 1837; “How the Mighty Have Fallen,” Painesville Telegraph, February 7, 1837; “Bank of Monroe,” Painesville Telegraph, February 10, 1837; “Monroe Bank,” Painesville Telegraph, February 24, 1837; “For the Telegraph,” Painesville Telegraph, March 31, 1837.
71. Hyde’s contact with Samuel Medary likely came through Oliver Cowdery and his prior political efforts.
72. Ohio General Assembly, Journal of the Senate of the State of Ohio, 35th General Assembly, 1836–37, 360–66.
73. Adams, “Chartering the Kirtland Bank,” 477–79.
74. When the Kirtland Safety Society opened for business in January 1837, Ohio law allowed a bank properly chartered in another state to open a branch in Ohio. The Ohio General Assembly had restricted this practice in 1836 by an act entitled An act to prohibit the establishment, within this State, of any branch, office, or agency of the Bank of the United States, as recently chartered by the Legislature of the Commonwealth of Pennsylvania, Acts of a General Nature, passed at the First Session of the Thirty-Fourth General Assembly of the State of Ohio (Columbus: James B. Gardiner, 1836), 37–39. This act was enacted to prohibit anyone from opening a branch in Ohio of the Bank of the United States, whose twenty-year charter expired on April 10, 1836. M. St. Clair Clarke and D. A. Hall, Legislative and Documentary History of the Bank of the United States: Including the Original Bank of North America (Washington, D.C.: Gales and Seaton, 1832), 713. Three years later, in 1839, the Ohio General Assembly enacted a law that expanded the scope of the 1836 act to include “any bank, or other association or company incorporated by the laws of any other State, or by the laws of the United States.” An act to prohibit the establishment within this State of any branch, office, or agency of the United States Bank of Pennsylvania, or any other bank or corporation incorporated by the laws of any other State, or by the laws of the United States, and for other purposes (passed February 9, 1839), Acts of a General Nature, Passed by the Thirty-Seventh General Assembly of Ohio, at Its First Session Held in the City of Columbus (Columbus: Samuel Medary, 1839), sec. 2, 10. As anticipated by the directors of the Kirtland Safety Society, through the Bank of Monroe’s charter the Kirtland Safety Society could become a branch office.
75. It is uncertain why the Mormons looked to the Bank of Monroe. While it was the oldest chartered bank in Michigan, it was experiencing its own troubles during this time, with what were ultimately determined as false claims that the bank was on the brink of failure. See Painesville Telegraph citing a letter from Henry Smith, the president of the Bank of Monroe, dated December 23, 1836, printed in the Detroit Journal: “Dear Sir: - Since my arrival in this city, I have learned, for the first time, the existence of the rumors tending to injure the credit and character of the Bank of Monroe. These rumors are perfectly false and groundless. That institution has always redeemed all its notes with specie—it still continues to do so; and there is no reasonable probability that it will do otherwise. The bank is in full business, and its capital stock will speedily be increased $50,000.—Reports calculated to injure the cashier, (Mr. Harleston,) have also been put in circulation. These are absolutely false. That gentleman is on his way from Buffalo to Monroe. It is hoped that the author of the reports alluded to, may be discovered.” Painesville Telegraph, December 30, 1836. Negative reports about the Bank of Monroe continued into 1837. The Cleveland Weekly Gazette reported in its February 1, 1837, issue, “Reports injurious to this institution are again in circulation. We are informed that Mr. J.V. AYER, of Buffalo, and other gentlemen, have made arrangements for the purchase of its entire stock and charter.” It further reported on February 8, 1837, “It is a matter of deep regret that the base and wholly unfounded reports against the character and condition of this institution are still kept afloat. They are sheer slanders, propagated by unworthy competition, or ignoble malice; and are daily and uniformly exposed and contradicted by the practical fact, that the bank ever has, and still does, punctually and readily redeem its bills: and its business operations all prove its positive soundness and responsibility.” These problems may have in fact attracted the Mormon leaders, as the Bank of Monroe was indeed ripe for change in ownership at an attractive price and terms.
76. The Painesville Telegraph in its February 29, 1837, issue reported this closing as follows:
BANK OF MONROE
With much satisfaction we announce to the public, that the stock of this institution, having changed hands is about to be increased to $500,000,
Mr. HARLESTON having sold his entire interest in the Bank, is succeeded, in his capacity as Cashier, by B.J. HATHAWAY, Esq., a gentleman possessing character and accomplishments which render him peculiarly qualified for the station so ably and acceptably filled by so worthy a predecessor.
At a meeting of the Stockholders and Board of Directors of the Bank of Monroe, held at their Banking House, this day, GEORGE B. HARLESTON, Esq., resigned his situation of Cashier and Director in the Institution, and O. COWDERY, Esq., was appointed a Director and Vice President by the Board for the remainder of the year. BAILEY J. HATHAWAY, Esq., was appointed Cashier.
By order of the Board:
B.J. HATHAWAY, Cashier
Monroe, Feb. 10, 1837.
77. This resignation was apparently made due to the legal questions as to whether Ohio law permitted someone to be a director of an out-of-state bank while being a director of the Kirtland Safety Society.
78. The acquisition was announced in Monroe Times, February 16, 1837; reprinted in “Bank of Monroe,” Painesville Republican, February 23, 1837.
79. Jessica Lepler, The Many Panics of 1837: People, Politics, and the Creation of a Transatlantic Financial Crisis (Cambridge: Cambridge University Press, 2013), 1–43.
80. Peter Rousseau, “Jacksonian Monetary Policy, Specie Flows, and the Panic of 1837,” Journal of Economic History (June 2002): 457–88; Edward S. Kaplan, The Bank of the United States and the American Economy (Westport, Conn.: Greenwood Press, 1999), 121–50.
81. The Ohio Star, published in Ravenna, Ohio, reported in its March 30, 1837, issue about this closure: “The ceaseless opposition to this institution has compelled it to suspend specie payments for sixty days. This has been occasioned by the almost impassable state of the roads, which have prevented the bank from receiving supplies of specie from the east. An expose of the situation of the bank, has been published, to give the public an opportunity of judging of it understandingly. The money continues to pass in this place, with many of our citizens—others refuse to receive it in payment for any article. The bank, we still think, will be able to do business, in a very short time, and so soon as navigation opens, on a basis more permanent than at any period since receiving its charter.”
82. Carter H. Golembre, State Banks and the Economic Development of the West, 1830–44 (New York: Arno Press, 1978), 440–56.
83. Kevin Dowd, The Experience of Free Banking (New York: Routledge, 1992), 211–12; Howard Bodenhorn, “Banking Chartering and Political Corruption in Antebellum New York: Free Banking as Reform,” in Corruption and Reform: Lessons from America’s Economic History, ed. Edward Glaeser and Claudia Goldin (Chicago: University of Chicago Press, 2006), 231–55; Gerald P. Dwyer, “Wildcat Banking, Banking Panics, and Free Banking in the United States,” Economic Review 81 (December 1996): 6–9; Larry J. Sechrest, Free Banking: Theory, History and a Laissez-Faire Model (London: Quorum Books, 1993), 3.
84. An Act to organize and regulate banking associations (passed March 15, 1837), Acts of the Legislature of the State of Michigan; Passed at the Annual Session of 1837 (Detroit: John S. Bagg, 1837), sec. 1, 76. The fatal blow resulting in abandoning the Bank of Monroe came with the Michigan legislature enactment on March 15, 1837, providing that “any persons could form an association for banking business,” thereby removing the need for a charter to operate a bank in Michigan, making the approved status of chartered banks in Michigan like the Bank of Monroe meaningless, especially for an out-of-state branch relying on the charter. Harvey J. Hollister, “Banks and Banking,” in History of the City of Grand Rapids, Michigan (Grand Rapids, Mich.: Munsell, 1891), 671–72.
85. Cowdery’s return to Kirtland marked the abandonment of having the Bank of Monroe act as the “parent” bank for the Kirtland Safety Society. Cowdery was elected a justice of the peace in Kirtland on May 25, 1837. “Oliver Cowdery,” Painesville Republican, May 25, 1837 (“Oliver Cowdery, late printer at Kirtland, has been elected a Justice of the Peace in that place, without opposition”).
86. The Painesville Republican reported in its June 29, 1837, issue: “AS IT SHOULD BE.- It is said that a number of suits have been lately commenced against the Bank of Geauga, upon their bills, in consequence of a refusal, on the part of the Bank, to redeem them with specie. The plaintiffs, it is understood, belong in Cleveland. Whatever may be the motives of those who have taken this step, it is clear, that the Bank has no right to complain. The Bills declare that, ‘the President, Directors, and Co. of the Bank of Geauga, will pay to the bearer on demand,’ etc., and when the holder of their bills call upon them to do so—they refuse, and at the same time declare their ability to pay, but obstinately, and insultingly tell the holder of their notes, that they have resolved not to make good their promises. Now suppose, reader, that the bank held a note against you, payable on demand—they call upon you and demand payment—you tell them you have abundant means to pay all your notes, but you have concluded that you will not pay your debts as you agreed to do—what think you the Bank would say and do? Would they not say—nay would they not have good right to say that you were dishonest—and that they would take immediate measures to compel you to pay? Most certainly, and no honorable man would complain of their so doing. On this principle, every person who holds a bill on any of the Banks which have refused to redeem their paper, would be fully justified in resorting to the legal method of collecting” (emphasis added).
87. Kirtland Safety Society, Discount and Loan Book, CHL.
88. As Ronald Esplin explained, “The 1837 Kirtland crisis, or Kirtland apostasy as it is sometimes known, cost us perhaps a third of the leadership—not a third of the members, but some of the elite, some of the well educated, some of the more prosperous.” Esplin, “Joseph Smith and the Kirtland Crisis,” 262. This apostasy reached its full strength by late May and June 1837. Charges were brought against some of these leaders before the Kirtland high council on May 29. At the same time, Lyman and Luke Johnson, Orson Pratt, and Warren Parrish countered with charges of their own delivered to Bishop N. K. Whitney against Joseph Smith and Sidney Rigdon. John Boynton joined in the charges against Smith and Rigdon. Most of the charges involved the operations of the Kirtland Safety Society. Wilford Woodruff, Wilford Woodruff’s Journal, 1833–1898, Typescript, ed. Scott G. Kenney, 9 vols. (Midvale, Utah: Signature Books, 1983–84), 1:148 (May 28, 1837); Kirtland Council Minute Book (Minute Book 1), May 29, 1837, CHL; Charges submitted by Lyman Johnson, Orson Pratt, Warren Parrish, and Luke Johnson, May 29, 1837, Newel K. Whitney Collection, L. Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University, Provo, Utah.
89. John Johnson, primarily through his son-in-law John Boynton, was heavily involved in land speculation that was rampant in Kirtland during this time.
90. While the other members of the Kirtland Safety Society undoubtedly would have had a claim against John Johnson for unilaterally taking his real property out of the venture (under joint stock company law), Johnson may have had a defense. As explained in Rianhard v. Hovey, 13 Ohio 300, 302 (1844), “How far are the stockholders liable for debts contracted by the directors? It may be admitted that, as to many persons parties to this suit, the acts of the directors in departing from the original objects of the association, and engaging in hazardous undertakings foreign to and adverse to it, was such a violation of their rights as gives them, in a court of equity, no just claim to contribution; and yet, as to creditors, the case may be quite different. Had such stockholders seen proper to step forward and assert their own rights at the time, and given notice to the public, they could not have been made responsible for any debts subsequently contracted. They neglected, however, to take any measures to inform the public, and left the directors in the sole management of their property, in the exercise of their name as a firm, and of the credit of the firm.”
91. Joseph Smith’s history records, “Some time previous to this [7 July] I resigned my office in the ‘Kirtland Safety Society’ disposed of my interest therein, and withdrew from the institution.” Smith, History, vol. B-1, p. 764. The Stock Ledger for the Kirtland Safety Society contained entries to July 2, 1837, which effectively matched the withdrawal by Smith and Rigdon. While some have argued that the bank stopped issuing notes in February, these references clarify the matter. Sampson and Wimmer, “Stock Ledger Book,” 429.
92. The Daily Herald and Gazette published in Cleveland reported in its July 8, 1837, issue about this: “Look Out.- We learn by the Painesville Telegraph of yesterday, that the ‘Mormon Banking Company’ is about making a new emission of their worthless trash, ‘using old paper and signed by D. Williams and one Parish, by the redemption of a few dollars of which they expect to get the old emission as well as the new, again into circulation.’” Reprinted in Elder’s Journal 1 (August 1838): 58.
93. This change may have taken place as early as May 1, 1837, at the semiannual meeting of the Kirtland Safety Society.
94. Claims of forgery were based on the issuance of new banknotes with the signatures of Joseph Smith and Sidney Rigdon. Brigham Young recalled: “Warren Parrish was the principal operator in the business [Kirtland Safety Society]. He had his partners, and they did not stop until they had taken out all the money there was in the bank, and also signed and issued all the notes they could.” Andrew Jenson, The Historical Record, 6 vols. (Salt Lake City, 1887), 5:433–34.
95. Some claimed that Parrish stole more than $20,000 from the Kirtland Safety Society. Orson F. Whitney, Life of Heber C. Kimball (Salt Lake City: Tevens and Wallis, 1945), 100; Staker, Hearken, O Ye People, 547 n. 98; Brigham H. Roberts, comp., A Comprehensive History of The Church of Jesus Christ of Latter-day Saints: Century I, 6 vols. (Salt Lake City: Deseret News, 1930), 1:405. Wilford Woodruff recounted, “Warren Parrish, who was a clerk in the Bank, afterwards acknowledged he took 20,000 dollars, and there was strong evidence that he took more.” Jessee, “Kirtland Diary of Wilford Woodruff,” 398 n. 77. Parrish was never charged with these claims.
Frederick G. Williams was appointed president after Joseph withdrew. “Argument to argument where I find it; Ridicule to ridicule, and scorn to scorn,” Elders’ Journal (August 1838): 58, available online at http://josephsmithpapers.org/paperSummary/elders-journal-august-1838&p=10; Frederick G. Williams, The Life of Dr. Frederick G. Williams, Counselor to the Prophet Joseph Smith (Provo, Utah: BYU Studies, 2012), 454–73.
96. Joseph Smith Jun., “Caution,” Messenger and Advocate 3 (August 1837): 560.
97. Anderson, Joseph Smith’s Kirtland, 193; Hill, Rooker, and Wimmer, “Kirtland Economy Revisited,” specifically appendix C for a list of the stockholders on the Kirtland Safety Society’s ledger book. For a discussion about the ledger book, see Sampson and Wimmer, “Stock Ledger Book.” The Smith family (including Joseph Sr. and Lucy, Hyrum and Jerusha, Joseph Jr. and Emma, Samuel, Sophronia Stoddard, Katherine Salisbury, and Lucy Jr., not to mention uncles, aunts, and other relatives) suffered the greatest losses. Their losses were followed, in size, by the Rigdon family (including Sidney, Phebe, and Sidney’s mother, Nancy). The John Johnson family’s losses would have been between the Smiths’ and the Rigdons’ had John Johnson Sr. not withdrawn his collateral in an obvious effort to mitigate his potential losses. Staker, Hearken, O Ye People, 524–25.
98. As Hill, Rooker, and Wimmer observed, estimating the number of notes in circulation has proven difficult, with some arguing that there were no notes and others claiming that as much as $150,000 in notes had been placed in circulation. Using a mathematical methodology that used the serial number of extant notes, these authors estimated that $85,000 of notes is the most reasonable estimate. Hill, Rooker, and Wimmer, “Kirtland Economy Revisited,” 444–48. Indeed there were a significant number of notes in circulation.
99. Some other cases were filed for passing the Kirtland Safety Society notes. For example, the Daily Herald and Gazette, published from Cleveland, reported in its July 17, 1837, issue, “Kirtland Money.—We learn by the St. Catherines Journal, that Mrs. Sarah Cleveland, late of that place, was committed to Niagara jail, for passing $390 of the ‘Kirtland Safety Society Bank’ with intention to defraud. She was subsequently admitted to bail.”
100. Newell’s animosity can be seen when he filed in April 1837 a complaint with Painesville Justice of the Peace Edward Flint claiming that he had “just cause to fear and did fear, that Joseph Smith, Jr. would kill him or procure other persons to do it.” Based on Newell’s complaint, Justice Flint issued a warrant for the arrest of Smith. Joseph Smith was arrested and brought before Justice Flint on May 30, 1837, to respond to these allegations. Because of the limited jurisdiction of justices of the peace, Justice Flint could only hold a hearing to determine whether there was sufficient evidence to establish probable cause that a crime had been committed. If Justice Flint so found, he would require the accused to enter into a recognizance, thereby agreeing to appear at the next term of the Court of Common Pleas, where the charges would be tried and to keep the peace during the interim. Justice Flint postponed this preliminary hearing until June 3, 1837, at the request of the defendant for additional time to prepare. On June 3, 1837, Joseph Smith appeared with his attorneys Benjamin Bissell and William Perkins. James Paine appeared with Newell. During this hearing, Justice Flint heard the testimony of nearly a dozen witnesses, after which he determined that probable cause existed to place Smith under a $500 recognizance bond to appear on the charge on the first day of the next term of the Geauga Court of Common Pleas and to keep the peace. Justice Flint also put three of the witnesses, Sidney Rigdon, Orson Hyde, and Solomon Denton, under recognizance of $50 each to appear and testify in this matter at the next term of the Geauga Court of Common Pleas. He then prepared a transcript of his actions and forwarded it to the Geauga Court. The June term of the Geauga Court commenced the following Monday, June 5, 1837. The Geauga Court of Common Pleas heard the case on Friday, June 9, 1837, where the evidence was again presented. At the conclusion of this trial the court discharged Joseph Smith and ordered the state to pay all court costs. See generally Order in State on the complaint of Grandison Newell v. Joseph Smith, Junior, Geauga County, Ohio, Court of Common Pleas, June 9, 1837 (Geauga County Common Pleas Record book T, 52–53, Geauga County Archives); Justice Trial Account, Painesville Telegraph, June 9, 1837; Justice and Common Pleas Trial Account, Painesville Republican, June 15, 1837; Newell’s letter to the editor, Painesville Telegraph, June 30, 1837; Editorial, Painesville Republican, July 6, 1837.
101. Ohio enacted its constitution on November 29, 1802, and was admitted as a state on February 19, 1803.
102. Miami is in reference to the Miami Valley located in the southwest portion of Ohio, a fertile area in the early nineteenth century containing more than a quarter of the total population of Ohio. Daniel Drake, Natural and Statistical View; Or Picture of Cincinnati and the Miami Country (Cincinnati: Looker and Wallace, 1815), 169–70.
103. Acts of the State of Ohio: First Session of the General Assembly, Held under the Constitution of the State (Chillicothe, Ohio, 1803), 126–36, specifically sec. 6; Report of Judiciary Committee (January 7, 1837) on the resolution on allowing Miami Exporting Company to have the powers of a bank, Ohio House of Representative Journal (Columbus, Ohio, 1837), 188–95.
104. Huntington, “History of Bank and Currency,” 260–64.
105. Huntington, “History of Bank and Currency,” 266.
106. Acts Passed at the First Session of the Thirteenth General Assembly of the State of Ohio (Chillicothe, Ohio: Nashee and Denny, 1815), 152–56.
107. William Graham Sumner, A History of Banking in the United States (New York: Journal of Commerce and Commercial Bulletin, 1896), 91.
108. Acts Passed at the First Session of the Fourteenth General Assembly of the State of Ohio, sec. 1, 10.
109. Acts Passed at the First Session of the Fourteenth General Assembly of the State of Ohio, sec. 5, 11.
110. Acts Passed at the First Session of the Fourteenth General Assembly of the State of Ohio, sec. 11, 12–13.
111. The following cases were brought under the Act of 1816: Bonsal v. State, 11 Ohio 72 (1841); Brown v. State, 11 Ohio 276 (1842); Bartholomew v. Bentley, 15 Ohio 659 (1846); Johnson v. Bentley, 16 Ohio 97 (1847); Lawler v. Walker, 18 Ohio 151 (1857); Kearny v. Buttles, 1 Ohio St. 362 (1853); Lawler v. Burt, 7 Ohio St. 340 (1857).
112. Acts of a General Nature Passed at the First Session of the Twenty-First General Assembly of the State of Ohio (Columbus, Ohio: P. H. Olmsted, 1823), 37–40.
113. Acts of a General Nature Passed at the First Session of the Twenty-First General Assembly of the State of Ohio, 38.
114. Acts of a General Nature Passed at the First Session of the Twenty-First General Assembly of the State of Ohio, 38.
115. Acts of a General Nature Passed at the First Session of the Twenty-First General Assembly of the State of Ohio, 38.
116. Acts of a General Nature Passed at the First Session of the Twenty-First General Assembly of the State of Ohio, 39.
117. Acts of a General Nature, Enacted, Revised and Ordered to be Re-Printed at the First Session of the Twenty-Second General Assembly of the State of Ohio (Columbus, Ohio: P. H. Olmsted, 1824), 358–66.
118. Acts of a General Nature, Enacted, . . . at the First Session of the Twenty-Second General Assembly of the State of Ohio, 365–66.
119. The suspension of the Act of 1816 by section 23 of the Act of 1824 did not prevent actions to be brought by the state under its criminal code. In Cahoon v. State, 8 Ohio 537 (1838), brought during the time that the Act of 1816 was suspended, Cahoon was indicted for circulating banknotes from a nonexistent corporation. Cahoon’s counsel objected to the jury instruction arguing that the jury should have been charged that “if they found the note offered in evidence was issued by an existing bank or company, they should acquit, whether the bank was incorporated or not” (emphasis in original). In remanding the case, the Ohio Supreme Court held that the “offence is the uttering of such note, knowing it to be of a non-existing bank or company, and not the uttering a note knowing it to have been issued by an existing unincorporated bank.” Criminal charges were never brought against any of the directors of the Kirtland Safety Society. Under the analysis the court used in Cahoon v. State, any such charge would have proven ineffective, as the Kirtland Safety Society was indeed in existence when it opened for business.
120. Acts of a General Nature by the Thirty-Eighth General Assembly of the State of Ohio (Columbus, Ohio: Samuel Medary, 1840), sec. 8, 117.
121. Acts of a General Nature by the Thirty-Eighth General Assembly of the State of Ohio, 113–17. A new act “to prohibit unauthorized Banking, and the circulation of unauthorized Bank paper” was enacted in 1845 (hereafter cited as Act of 1845). The Act of 1845 was similar to the Act of 1816 in that it provided for a $1,000 penalty to officers, directors, or owners of an unauthorized bank, but broadened those subject to the penalty to include “every person who . . . become[s] in any way interested” in an authorized bank. The Act of 1845 eliminated the provision whereby a citizen could bring a suit and share in 50 percent of the recovery. Act of 1816, sec. 5.
122. 16 Ohio 97 (1847).
123. Justice Reed was one of four sitting Ohio Supreme Court Justices in 1847. The other three justices were Reuben Wood, Matthew Birchard and Peter Hitchcock. An act to organize the judicial courts (passed February 7, 1831), Statutes of the State of Ohio (Columbus: Samuel Medary, 1841) sec. 1, 222 (hereafter cited as Statutes of the State of Ohio (1841)) (“That the supreme court shall consist of four judges”).
124. Johnson v. Bentley, 16 Ohio 97, 99–100 (1847); Lewis v. McElvain, 16 Ohio 347, 356 (1847) (By the act of March 23, 1840, this provision of the act of 1824 was repealed. And the court held in the before-cited case of Johnson v. Bentley et al., “that inasmuch as this provision was repealed, the bills and notes were left as under the law of 1816, and that although void by the law of 1824, still that the plaintiffs could recover—in other words, that the repeal of the law of 1824 set up or gave validity to notes and bills which were uncollectible when issued. Such, at least, is the effect of the decision”).
125. Johnson v. Bentley, 16 Ohio 97, 102 (1847).
126. Johnson v. Bentley, 16 Ohio 97, 102–3 (1847); Porter v. Kepler, 14 Ohio 127, 138 (1846) (recognizes that the Act of 1824 superseded the Act of 1816); Lawler v. Walker, 18 Ohio 151, 158 (1849) (notes that the Act of 1816 was back in force by 1841, when the claims in the case were brought).
127. See appendix C for a summary chronology of the events of this lawsuit, as well as the two subsequent related actions.
128. Samuel D. Rounds “played only a small role in Kirtland’s history. He was born in Boston about 1807, lived for a time in Lewis County, New York, then moved to Painesville, Ohio about 1834. . . . Samuel and his two sons . . . laid brick for a living.” Dale W. Adams, “Grandison Newell’s Obsession,” Journal of Mormon History 30 (Spring 2004): 173–74. There are no known documents that explain the connection between Rounds and Newell. Perhaps Rounds’s work as a mason and Newell’s interests in various building ventures, including railroading, connected them.
129. Horace Kingsbury (c. 1798–1853) was a jeweler and silversmith. He was born in New Hampshire and moved to Painesville, Ohio, in 1827. He joined the LDS Church and was ordained an elder in 1832. He was elected a Painesville trustee in 1847 and mayor in 1848. Joseph Addison Kingsbury, comp., A Pendulous Edition of Kingsbury Genealogy, Gathered by Rev. Addison Kingsbury, D.D., Marietta, Ohio (Pittsburgh, Penn.: Murdoch-Kerr Press, 1901), 230; History of Geauga and Lake Counties, 214.
130. Grandison Newell (1785–1874) was born in Barkhamstead, Connecticut. He moved to Winsted, Connecticut, where he made bells for clocks. In 1819, he moved to Kirtland, where he initially was a farmer. He opened a “pocket furnace” manufacturing company in Kirtland with Chester Hart shortly after his arrival in Ohio. In 1829, he opened a chair and cabinet factory and saw mill also in Kirtland, likely with James Fairchild as his partner. This factory remained open until 1841. He was a principal in the construction of the Wellsville and Fairport Railroad. Newell personally invested $60,000 in that venture, which went bankrupt in 1841. In 1849, Newell sold his home, farm, chair, and furnace companies and moved to Painesville. Elizabeth G. Hitchcock, “Grandison Newell, a Born Trader,” Historical Society Quarterly, Lake County, Ohio 10, no. 2 (May 1968): 79–82; Mary A. (Newell) Hall, comp., Thomas Newell, and His Descendants (Southington, Conn.: Cochrane Bros., 1878), 132–39; History of Geauga and Lake Counties, 250.
131. Mary A. Newell Hall, a Newell family historian, quoted Grandison Newell as saying, “Samuel D. Rounds, the complainant, I bought off, and gave him $100. I have been to all the vexation and troubles and paid all costs from the first commencement.” Hall, Thomas Newell, and His Descendants, 132–38, as cited in Adams, “Grandison Newell’s Obsession,” 173.
132. See, for example, collection efforts on the judgment entered against Rigdon noted on the Bill of Goods that the sale of property owned by Rigdon that was appraised for sale on January 29, 1838, “remained unsold by direction of Grandison Newell,” and that Newell was paid the $604.50 that was recovered by the sheriff over the same personal property of Rigdon. Bill of Costs, October 24, 1837, Geauga County Court of Common Pleas, Execution Docket G, 106, Geauga County Archives.
133. Section 1 of the Act of 1816 provided: “That if any person shall, within this state, act as an officer, servant, agent or trust to any bank or monied association . . . except a bank incorporated by a law of this state, he shall, for every such offence, forfeit and pay the sum of one thousand dollars.”
134. Sometimes abbreviated as Q.T., qui tam comes from the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “who as well for the king as for himself sues in this matter.” Giles Jacob, The Law-Dictionary: Explaining the Rise, Progress and Present State, of the English Law, corrected and enlarged by T. E. Tomlins, 6 vols. (Philadelphia: I. Riley, 1811), s.v. “qui tam.” John Bouvier explains a qui tam action occurs “when a statute imposes a penalty, for the doing or not doing an act, and gives that penalty in part to whosoever will sue for the same, and the other part to the commonwealth.” Bouvier, Law Dictionary, s.v. “qui tam.” The various pleadings in this case are captioned for example as “Samuel D. Rounds, qui tam v. Joseph Smith” (or other defendants) or sometimes simply “Samuel D. Rounds, q.t. v. Joseph Smith.”
135. Section 5 of the Act of 1816 provided: “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, 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.” This language parallels similar acts enacted by Congress shortly after the enactment of the Constitution. For example, a 1791 act of Congress provided that “one half of all penalties and forfeitures incurred by virtue of this act shall be for the benefit of the person or persons who shall make a seizure, or shall first discover the matter. . . . And any such penalty and forfeiture shall be recoverable with costs of suit, by action of debt, in the name of the person or persons entitled thereto.” Harold J. Krent, “Executive Control over Criminal Law Enforcement: Some Lessons from History,” American University Law Review 38 (1989): 296–97. This relationship between the state and the informer creates a quasi-criminal situation, criminal in that if the state itself pursued the matter it squarely is a criminal matter. However, when a private citizen brings the suit it is civil in nature. Krent notes, in this regard, “Through the qui tam actions, private citizens helped enforce the criminal laws. Such actions were long considered quasi-criminal. Indeed, during the nineteenth and early twentieth centuries, civil qui tam actions represented the functional equivalent of criminal prosecution.” Krent, “Executive Control,” 297. This relationship clearly existed in the Act of 1816 with the distinction that if the state itself brought the action it would have been criminal via indictment from a grand jury with the entire amount going to the state. This being the case, the law in such quasi-criminal actions requires a higher standard for proof. As noted by the 1835 United States Supreme Court in United States v. The Brig Burnett, 34 U.S. 682, 691, “no individual should be punished for violation of a law which inflicts forfeiture of property, unless the offense shall be established beyond a reasonable doubt.”
136. Reuben Hitchcock (1806–1883) was an attorney, judge, banker and railroad executive. He was born in Burton, Geauga Co., Ohio, a son of Peter Hitchcock, also an attorney and justice on the Illinois Supreme Court. Reuben attended Yale College, 1823–26. He was admitted to Ohio bar about 1831. He moved to Painesville, Geauga (now Lake) Co., Ohio, about 1831. History of Geauga and Lake Counties, 23, 30, 37, 43, 61–62; “Death of Judge Reuben Hitchcock of Painesville,” Painesville Telegraph, December 13, 1883.
137. Reuben Hitchcock wrote his father, Peter Hitchcock, on June 26, 1837, from Painesville, noting, “Last winter I was employed by Saml D. Rounds.” Reuben Hitchcock to Peter Hitchcock, June 26, 1837, Western Reserve Historical Society, Cleveland, Ohio.
138. Reuben Hitchcock was the prosecuting attorney for Geauga County from 1837 to 1839. History of Geauga and Lake Counties, 23.
139. Reuben Hitchcock, in a letter to his father dated February 6, 1837, asks, “I wish to ascertain the practice in this State, when it is provided that the penalty may be recurred by action of debt or indict— one half to the informed + the other half to the State, but if recovered by indictment the whole goes to the State— In case an action of debt is brought at the instance of an informer should the suit be in the name of the State of Ohio for of the informer qui tam— I have examined considerably I can find nothing in our decisions on the subject, and know not what the old fashioned qui tam actions are in this State— If consistent with your duty will you inform me on this point.” Reuben Hitchcock to Peter Hitchcock, February 6, 1837, Western Reserve Historical Society. While we do not have Peter Hitchcock’s reply, Reuben determined to bring the case in the name of the informer, Rounds, and not the State of Ohio. “Where a statute creates a penalty, and authorizes a recovery before a justice by an action in debt, but is silent as to the person or corporation in whose name the penalty shall be prosecuted, the action should, in general, be brought in the name of ‘The State of Ohio.’ . . . But if part be given to him, or to any other informer who shall sue, and part to some other person, or corporation, then the suit should be brought by the party aggrieved, or by the informer; who, with the person or corporation entitled to a portion of the penalty should be named in the process.” Joseph R. Swan, A Treatise on the Law Relating to the Powers and Duties of Justices of the Peace and Constables in the State of Ohio (Columbus: Isaac N. Whiting, 1839), 487 (hereafter cited as Swan, Duties of Justice of the Peace).
140. Writs of summons are writs prepared by the court and given to a constable or sheriff to serve on a party commanding them to come to court to answer a complaint on a specific date. After serving the defendant(s), the officer would then return the original copy of the summons to the court with an endorsement on the back indicating when and how they performed the service, or that they could not find the defendant within their bailiwick after searching for them. Jacob, Law-Dictionary, 6:137, s.v. “writ of summons”; Bouvier, Law Dictionary, s.v. “summons”; Statutes of the State of Ohio (1841), ch. 66, sec. 14, 15, 16 114(8); ch. 86, sec. 1, 3, 5, 6; ch. 97, sec. 3.
141. Van Rensselaer Humphrey (1800–1864) was a teacher, lawyer, and judge born in Goshen, Connecticut. He moved to Hudson, Ohio, in June 1821 and in 1824 was elected Hudson Township justice of the peace. He was a member of the Ohio House of Representatives in 1828 and 1829 and elected by the Ohio Legislature as president judge of the Court of Common Pleas for the Third Judicial District in 1837, a position he would hold until 1844. William Henry Perrin, History of Summit County: With an Outline Sketch of Ohio (Chicago: Baskin and Bettey, 1881), 304, 712, 841.
142. David Dickey Aiken (1794–1861) was the Geauga County clerk from 1828 to 1841. He was made an associate justice of the Geauga County Court of Common Pleas in 1846. History of Geauga and Lake Counties, 221; “Death of Judge Aiken,” Painesville Telegraph, December 28, 1861.
143. A plea of debt is the name of an action used for the recovery of a debt. The nonpayment is an injury, for which the proper remedy is by action of debt to compel the performance of the contract and recover the specific sum due. Action of debt is a more extensive remedy than assumpsit, as it is applicable for recovery of money due upon a legal liability, as for money lent, paid, had and received, due on an account, for work and labor, and so forth. Jacob, Law-Dictionary, s.v. “debt”; Bouvier, Law Dictionary, 1:290–91, s.v. “plea of debt”; Bank of Chillicothe v. Town of Chillicothe, 7 Ohio 31 (1836); Carey’s Adm’r v. Robinson’s Adm’r, 13 Ohio 181 (1844).
144. Each writ of summons was identical in this regard. See Transcripts of Proceedings for each defendant, each dated October 24, 1837, Geauga County Court of Common Pleas, Final Record book U, Geauga County Archives: 353–54 for Warren Parrish (hereafter cited as Parrish Transcript), 354–56 for Frederick G. Williams (hereafter cited as Williams Transcript), 356–57 for Newel K. Whitney (hereafter cited as Whitney Transcript), 358–59 for Horace Kingsbury (hereafter cited as Kingsbury Transcript), 359–62 for Sidney Rigdon (hereafter cited as Rigdon Transcript), 362–64 for Joseph Smith (hereafter cited as Smith Transcript). Hereafter collectively cited as Trial Transcripts.
145. Sheriff Abel Kimball (1800–1880) was a farmer born in Rindge, New Hampshire. He moved to Madison, Geauga County, Ohio, in August 1813. He served as Geauga County second sheriff beginning in 1835 and as sheriff from 1838 to 1841. Township Clerk, “Kirtland Township Trustee’s Minutes and Poll Book, 1838–1846” (Kirtland, Lake County, Ohio); Lake County Historical Society, transcriber, “Kirtland Township Records, 1838–1846,” CD-ROM database, Mormon Related Archives from the Lake County Historical Society (Kirtland Hills, Ohio: Lake County Historical Society, 2004), 9, 90; Ohio Historical Records Survey Project Service Division, Work Projects Administration, Inventory of the County Archives of Ohio, No. 28, Geauga County (Chardon) (Columbus, Ohio: Ohio Historical Records Survey Projects, 1942), 299.
146. Sheriff Abel Kimball’s service of process was as follows: Joseph Smith: left a copy with his wife at his home on February 10, 1837 (Smith Transcript); Sidney Rigdon: left a copy with his wife at his home on February 10, 1837 (Rigdon Transcript); Frederick G. Williams: left a copy with his wife at his home on February 10, 1837 (Williams Transcript); Horace Kingsbury: personally served on February 10, 1837 (Kingsbury Transcript); Newel K. Whitney: personally served undated (Whitney Transcript); Warren Parrish: personally served on March 17, 1837 (Parrish Transcript).
147. The Ohio General Assembly enacted An act to regulate the times of holding the Judicial Courts on February 4, 1837. This act delineated the schedule for the Court of Common Pleas for Geauga County, which was then part of the Third Circuit, noting that it would hold court during the following three terms: “A March term commencing on March 21; June term, commencing on June 5; and an October term, commencing on October 24.” Act of a General Nature Passed at the First Session of the Thirty-Fifth General Assembly of the State of Ohio (Columbus: S. R. Dolbee, 1837), sec. 4, 13.
148. In only the Kingsbury Transcript is the date of the filing of the Declaration noted. In the rest of the transcripts the date is left blank.
149. The declaration is a document filed by the plaintiff in a Court of Law (as opposed to Chancery) that sets forth the names of the parties, facts from the view of the plaintiff, the legal basis under which the cause of action arises (described as a writ), and the relief sought. Jacob, Law-Dictionary, s.v. “declaration”; Bouvier, Law Dictionary, s.v. “declaration”; Nichols v. Poulson, 6 Ohio 305 (1834); Belmont Bank of St. Clairsville v. Walter B. Beebe, 6 Ohio 497 (1834); Headington v. Neff, for the use of Neff, 7 Ohio 229 (1835).
150. Trial Transcripts; emphasis added.
151. As mentioned in note 59 above, this change was further evidenced by replacing “President” with “Secretary” and “Cashier” with “Treasurer” on the notes that had been already executed in anticipation of opening the bank. Also, stamps were made with the words “Anti” and “ing” and were used on some of the executed notes to indicate the name change. However, the majority of notes distributed did not have “Anti” or “ing” stamped on them. Staker, Hearken O Ye People, 479.
152. Reuben Hitchcock to Peter Hitchcock, June 26, 1837, Joseph Smith Collection, CHL. See Act of 1816, sec. 5.
153. William Lee Perkins (1799–1882) moved to Painesville, Ohio, in 1828. He formed the law firm of Perkins & Osborn with Salmon S. Osborn on February 18, 1834, and became the Lake County (divided from Geauga County) prosecuting attorney in 1840. History of Geauga and Lake Counties, 30, 62, 63, 87.
154. Salmon Spring Osborn (1804–1904) opened a law office in Chardon, Geauga County, Ohio, in partnership with R. Giddings in 1828. He moved to Painesville, Ohio, in about 1833 and formed the law firm of Perkins & Osborn the following year. History of Geauga and Lake Counties, 215, 216.
155. Perkins & Osborn were retained by Joseph Smith and the other defendants in March 1837, who paid to the law firm a $5.00 retainer each. See Bill for Attorney Fees from Perkins & Osborn to Joseph Smith, CHL (hereafter cited as Perkins & Osborn Billings). Joseph Smith had retained Perkins & Osborn on several matters noted in this bill that accounts for services provided from March through December 1837. From a letter dated October 29, 1838, from William Perkins to Joseph Smith that was a cover letter to a billing statement, we can conclude that Perkins provided most of the legal services in this case. William L. Perkins to Joseph Smith, October 29, 1838, Joseph Smith Collection and Joseph Smith Office Papers, CHL. This letter notes:
Painesville Oct 29. 1838
Joseph Smith Jr Esq
At suggestion of our friend Mr. Granger we sent your statement of our amt & demands—You know I threw my whole influence, industry & whatever talents I have faithfully into your affairs—do something for me. “The labourer is worthy of his hire”
In the Qui tam suits of Rounds, we have charged the different individuals according as we thought was about right in proportion to our services—I spent a great deal of time & labor in my office in those suits & though unsuccessfully it was no fault of ours you know. Parrish’s billed & we have a judgt against him for his proportion & presume it will be collected—
I have heard much of your troubles & take an interest in your welfare & believe you must prevail, notwithstanding all persecutions—
I read Mr. Rigdons elegant & spiritual 4th of July address for mail, please present my compliments to him & wish him well for his prosperity—We have a small amount against Mr. Marks, which he will recognize, He escaped our collection when he left—
P.S. We also sent an amount against Mr George W Robinson & a __ G.W. Robinson
Joseph Smith assumed responsibility for his legal fees, as well as those of Sidney Rigdon, Frederick G. Williams, and Newel K. Whitney over the Rounds case. He did not assume responsibility for either Warren Parrish or Horace Kingsbury. By October 1838 when the bill was sent by Perkins to Smith, Parrish had left the Church, had started his own church, and was under suspicion of embezzling money from the Kirtland Safety Society. It appears that Horace Kingsbury left the LDS Church prior to or just after these events but was a resident in Painesville both before and after the Mormons arrived and were then driven out of Kirtland. It would therefore make sense that Smith would not assume his obligations. Kingsbury was elected mayor of Painesville in 1847.
156. Jacob, Law-Dictionary, s.v. “demurrer” (emphasis in original); Bouvier, Law Dictionary, s.v. “demurrer”; Green v. Dodge and Cogswell, 6 Ohio 80, 84 (1833) (Facts are taken as true in the demurrer and court only looks at the application of the law); Belmont Bank of St. Clairsville v. Beebe, 6 Ohio 497, 497–98 (1834) (“This case stands before the court on a demurrer to the declaration . . . The omission of this averment makes the count bad”); Pennsylvania and Ohio Canal Co. v. Webb, 9 Ohio 136, 138 (1839) (“The first question arising upon the demurrer is upon the sufficiency of the declaration”).
157. It appears that Perkins & Osborn charged an additional $5.00 to each defendant for preparing and arguing these demurrers for a total of $30.00. Perkins & Osborn Billings.
158. Overruled Demurrer in Rounds v. Smith, June 10, 1837, Common Pleas Journal, book N, 223, Geauga County Archives; Overruled Demurrer in Rounds v. Rigdon, June 10, 1837, Common Pleas Journal, book N, 223; Overruled Demurrer in Rounds v. Kingsbury, June 10, 1837, Common Pleas Journal, book N, 222; Overruled Demurrer in Rounds v. Williams, June 10, 1837, Common Pleas Journal, book N, 223; Overruled Demurrer in Rounds v. Parrish, June 10, 1837, Common Pleas Journal, book N, 223; Overruled Demurrer in Rounds v. Whitney, June 10, 1837, Common Pleas Journal, book N, 222 (hereafter collectively cited as Overruled Demurrers).
159. Perkins & Osborn Billings.
160. “Anti-Banking Company,” Painesville Republican, January 19, 1837.
161. “For the Republican,” Painesville Republican, February 16, 1837. The article further noted: “The law of ’16 against private banking, was of the latter description—it was rejected by the committee and was not republished by the legislature; but instead, a general law regulating banks and bankers was passed, containing amongst other provisions, a section making all notes, bonds, &c. issued by unauthorized banking companies null and void, without, however, annexing any penalty. . . . It is the duty of the legislature (and has hitherto been their practice) to promulgate or publish their laws. It then (and not before) becomes the duty of any citizen to obey the laws. We must suppose the legislature regarded the law of 1816 as not in force, and hence they did not publish it with their revised code; unless indeed we suppose the intended purposely to adopt the policy of the Athenian tyrant Draco, who, the more easily to ensnare his people, wrote his laws in small characters and hung them up high in the market places, that they might not read them. If the legislature makes their decrees and lock[s] them up in their own bosoms, or in the archives of the State, and then punish the people for not obeying laws they never saw or heard of, they are greater tyrants than ever disgraced the age of a Nero or Calagula [sic]. What man of common information thinks of looking beyond the statute books which is published and distributed by authority of the legislature, for a rule of civil conduct? And who expects to be punished as a criminal for not conforming to laws of which he has never heard. The administration of criminal justice is a matter of the highest importance to a people proud of and boasting of their liberties, and in proportion to its importance, (says a great lawyer) should be the care and attention of the legislature, in properly forming and enforcing it. It should be founded on principles that are permanent, uniform and universal, and always conformable to the dictates of truth and justice, the feelings of humanity and the indelible rights of mankind. If this law be still in force there has been on the part of those high in office, a great dereliction of duty, and probably Mr. Servantes would come in for a share of the odium” (emphasis added). However, other newspapers reported that some people thought that one section of the Act of 1816 was still in force. As the Huron Reflector reported on January 24, 1837, “We consider this whole affair a deception, and are told by a legal gentleman, that there is still in force a section of the statute affixing a penalty of $1000 to the issuing or passing unauthorized Bank paper like the present.” Reprinted in Painesville Telegraph, January 29, 1830.
162. Bill of Costs in Rounds v. Smith, June 5, 1837, Geauga County Court of Common Pleas, Execution Docket G, 15, notes that it was paid, but no date of payment; Bill of Costs in Rounds v. Rigdon, June 5, 1837, Geauga County Court of Common Pleas, Execution Docket G, 15, notes that it was paid on July 19, 1837; Bill of Costs in Rounds v. Kingsbury, June 5, 1837, Geauga County Court of Common Pleas, Execution Docket G, 15, notes that $1.00 was paid; Bill of Costs in Rounds v. Williams, June 5, 1837, Geauga County Court of Common Pleas, Execution Docket G, 15, notes that it was paid on August 5, 1837; Bill of Costs in Rounds v Parrish, June 5, 1837, Geauga County Court of Common Pleas, Execution Docket G, 15, notes that it was paid, but no date of payment; Bill of Costs in Rounds v. Whitney, June 5, 1837, Geauga County Court of Common Pleas, Execution Docket G, 15, notes that it was paid, but no date of payment.
163. Leave to amend as requested by the defendants was typically granted on payment of costs, as required by statute. An act to regulate the practice of the judicial courts (passed March 8, 1831), Statutes of the State of Ohio (1841), sec. 51, 662 (hereafter cited as Practice of the Courts Act). For example, in Headley v. Roby, 6 Ohio 521, 522 (1834), “on overruling the demurrer, the court gave the plaintiff in error leave to amend. The plaintiff in error then filed a plea of payment to the declaration and a notice of set-off.” In addition to having to pay the costs associated with the demurrer, an affidavit may also be required to justify the motion to amend. This issue was also discussed in Manley v. Hunt and Hunt, 1 Ohio 257, 257 (1824), where the trial court overruled a demurrer. “The defendants then moved for leave to answer, but not having produced an affidavit of merits, and that the demurrer was not filed for delay, as the statute requires, the court were on the point of overruling the application, when, by consent of the complainant, defendants were permitted to file their answers.”
164. Perkins & Osborn did not bill for the preparation of these answers. One may assume it was part of the fees they charged for the preparation and arguing the demurrers or was taken out of the initial retainers. Perkins & Osborn Billings.
165. Trial Transcripts.
166. An act to organize the judicial courts (passed February 7, 1831), Statutes of the State of Ohio (1841), sec. 4, 222 (“That the court of common pleas shall consist of a president and three associate judges”).
167. See note 141.
168. John Hubbard (1780–1854) was a farmer and judge born in Sheffield, Massachusetts. He moved to Madison, Geauga County, Ohio, by 1812. He was elected as an associate judge for Geauga County Court of Common Pleas in 1827. Judy J. Stebbins, Guide to the Painesville (Ohio) Telegraph, 1822–1829: Newspaper Abstracts with Indexes (Willoughby, Ohio: Genealogical Research, 1982), 40, 77, 157, 188.
169. Daniel Kerr (1791–1871) was a farmer, postmaster, and judge born in Fallowfield, Pennsylvania. He moved to Painesville, Ohio, before 1816. He then moved to Mentor, Ohio, where he became postmaster in 1819. Kerr returned to Painesville, where he was elected as an associate judge for the Geauga County Court of Common Pleas by 1831. History of Geauga and Lake Counties, 238, 251.
170. Storm Rosa (1791–1864) was a doctor, judge, teacher, and newspaper editor. Born in Coxsackie, New York, he moved to Painesville, Ohio, in 1818. He was a teacher at the Medical College of Willoughby University in 1834, located in Chagrin, Ohio. He was elected as an associate judge of the Court of Common Pleas for Geauga County in 1836. Rosa was also the editor of the Painesville Telegraph from September 1838 to July 1839. Margaret O. Collacott, “Dr. Storm Rosa,” Historical Society Quarterly, Lake County, Ohio 6 (February 1964): 92–94; History of Geauga and Lake Counties, 23, 32, 36–37.
171. Williams Trial Transcript; Whitney Trial Transcript; Kingsbury Trial Transcript. The case against these defendants was dismissed, and the plaintiff was required to pay the court fees.
172. Spencer v. Brockway, 1 Hammond 257 (Ohio 1824) (“That such proceedings were had, that the said Elias being three times solemnly called, came not, but made default, and that judgment was thereupon rendered”); Flight v. State, 7 Ohio 180, pt. 1, 180 (1835) (“The said Charles Fight was three times called to come into court, but made default, and his recognizance was forfeited”).
173. Parrish Trial Transcript.
174. Reuben Hitchcock to Peter Hitchcock, June 26, 1837; emphasis in original.
175. By statute, by dismissing this kind of case, Rounds was obligated to pay all costs. “That if any informer on a penal statute, to whom a penalty, or any part thereof, if recovered, is directed to accrue, shall discontinue his suit or prosecution, or shall be nonsuited in the same . . . such informer shall pay all costs accruing on such suit or prosecution.” Practice of the Courts Act, sec. 61, 665.
176. Nonsuit is the “name of a judgment given against a plaintiff, when he is unable to prove his case, or when he refuses or neglects to proceed to trial of a cause after it has been put at issue, without determining such issue. It is either voluntary or involuntary. A voluntary nonsuit, as in this case, is an abandonment of his cause by a plaintiff, and an agreement that a judgment for costs be entered against him. An involuntary nonsuit takes place when the plaintiff on being called, when his case is before the court for trial, neglects to appear, or when he had given no evidence upon which a jury could find a verdict.” Bouvier, Law Dictionary, s.v. “nonsuit”; Jacob, Law-Dictionary, s.v. “nonsuit.” There are no appeals from a nonsuit, unless the nonsuit was ordered by or proceeded from the action of the court; for, if the voluntary act of the party, he cannot appeal from it. Bradley v. Sneath, 6 Ohio 490, 496 (1834).
177. Record of Judgment in Rounds v. Parrish, Geauga County Court of Common Pleas, Journal N, 242; Record of Judgment in Rounds v. Williams, Geauga County Court of Common Pleas, Journal N, 242; Record of Judgment in Rounds v. Whitney, Geauga County Court of Common Pleas, Journal N, 241–42; Record of Judgment in Rounds v. Kingsbury, Geauga County Court of Common Pleas, Journal N, 241.
178. Bill of Costs in Rounds v. Parrish, Geauga County Court of Common Pleas, Execution Docket G, 127. This Bill of Costs also notes that Rounds owed $3.22 in his own court costs; Parrish Trial Transcript.
179. Bill of Costs in Rounds v. Williams, Geauga County Court of Common Pleas, Execution Docket G, 126. Perkins & Osborn billed Joseph Smith $10 for Williams’s portion of the trial. This Bill of Costs also notes that Rounds owed $3.36 in his own court costs; Williams Trial Transcript.
180. Bill of Costs in Rounds v. Whitney, Geauga County Court of Common Pleas, Execution Docket G, 127 (actually notes $8.53 owed, but itemization only totals $7.15 and that amount matches his Trial Transcript). Perkins & Osborn billed Joseph Smith $10 for Whitney’s portion of the trial. This Bill of Costs also notes that Rounds owed $3.22 in his own court costs; Whitney Trial Transcript.
181. Bill of Costs in Rounds v. Kingsbury, Geauga County Court of Common Pleas, Execution Docket G, 126. This Bill of Costs also notes that Rounds owed $3.46 of his own court costs; Kingsbury Trial Transcript.
182. Common Pleas Journal, book N, 237.
183. Juries were governed by statute. Only white males over the age of twenty-one living in the county qualified as prospective jurors. An act relating to juries (passed February 1, 1831), Revised Statutes of Ohio (Columbus: Olmstead and Bailhache, 1831), sec. 2, 94 (hereafter cited as Revised Statutes of Ohio (1831)). Jurors were selected thirty days prior to the start of the court’s term. From those qualified to serve, twenty-seven were randomly selected by the sheriff—fifteen to serve on the grand jury and twelve to serve on the petit jury. Act relating to juries, sec. 4, 95. By statute, jurors were paid $1.00 per day. An act to regulate the fees of officers in civil and criminal cases (passed on March 22, 1837, and became effective on June 1, 1837), Statutes of the State of Ohio (1841), sec. 15, 401. The prior act paid the same daily amount. Revised Statutes of Ohio (1831), sec. 14, 225. The Smith Trial Bill of Costs notes a $6.00 charge for the jury while the Rigdon Trial Bill of Costs combined the jury and attorney’s fees totaling $11.00. However, the Smith Trial Bill of Costs clarifies this combined number as it notes $6.00 for jury fee and $5.00 for attorney’s fees. It is reasonable to suppose that $6.00 was charged in both cases for the jury fee. Thus, it appears that trial only lasted half a day. The jury in Joseph Smith’s trial included Guy Wyman, Caleb E. Cummings, John A. Ford, William Crafts, David Smith, George Patchin, Ira Webster, Stephen Hulbert, William B. Crothers, Jason Manley, Joseph Emerson, and Thomas King. Smith Trial Transcript. Sidney Rigdon’s jury included Amos Cunningham, John McMackin, Erastus Spencer, Gerry Bates, George D. Lee, William C. Mathews, William Graham, Benjamin Adams, Harrison P. Stebbins, Jonathan Hoyt, Heman Dodge, and Thaddeus Cook. Rigdon Trial Transcript.
184. Trial Bill of Costs in Rounds v. Smith, Geauga County Court of Common Pleas, Execution Docket G, 105 (hereafter cited as Smith Trial Bill of Costs).
185. Trial Bill of Costs in Rounds v. Rigdon, Geauga County Court of Common Pleas, Execution Docket G, 106 (hereafter cited as Rigdon Trial Bill of Costs).
186. An act fixing the fees of witnesses in civil and criminal cases (passed on March 22, 1837, and became effective on June 1, 1837), Statutes of the State of Ohio (1841), sec. 1, 390. The fee was the same whether the witness was testifying in a civil or criminal case. Act fixing the fees of witnesses in civil and criminal cases, sec. 2, 390. This is an increase from the $0.50 per day fee previous to this act. Revised Statutes of Ohio (1831), sec. 9, 224 (“That witnesses shall be allowed the following fees: For going to attending at, and returning from court, under a subpoena, per day, to be paid by the party at whose instance he is summoned (on demand), and taxed in the bill of costs, fifty cents”); Swan, Duties of Justice of the Peace, 103 (“Witnesses are, in general, allowed fifty cents per day, in each case in which they are subpoenaed, or sworn and examined, whether subpoenaed or not”).
187. Both the Smith and Rigdon trial transcripts had Kirtland Safety Society notes. The note attached to the Smith trial transcript has since been stolen. A photocopy of the Smith trial transcript in the Family History Library, The Church of Jesus Christ of Latter-day Saints, Salt Lake City (hereafter cited as FHL), includes the note.
188. A “true verdict” references the jurors’ oath to only make their decision based on the evidence. “The fact only is in evidence, and, consequently, the law not being in evidence is not before them. Thus in the clearest terms does the oath limit and define their duty.” Jacob, Law-Dictionary, s.v. “jury.”
189. Smith Transcript, 362; Rigdon Transcript, 360.
190. Ohio law provided: “And when a party to a suit, in any court of common pleas within this state, alleges an exception to any order or judgment of such court, it shall be the duty of the judges of such court, concurring in such order or judgment, if required by such party during the term, to sign and seal a bill containing such exception or exceptions as heretofore, in order that such bill or exceptions may, if such party desire it, be made a part of the record in such suit.” Practice of the Courts Act, sec. 96, 676. This bill of exceptions was the first step in having a judgment examined by the Ohio Supreme Court. “The bill of exceptions is in practice, and by law, to be signed and sealed only, not to be prepared by judges; the only obligation upon the judges is to sign and seal a true bill of exceptions.” State ex rel. Atkins v. Todd, 4 Ohio 351, 351 (1831); Baldwin v. State, 6 Ohio 15, 16 (1833) (“In civil cases, the bill of exceptions is made part of the record only on the application of the party. . . . If the clerk omit to perform this duty, the party is not without remedy, in the court where the omission takes place. But this court, upon a writ of error, can only notice matter inserted in the record. It cannot look at that which ought to have been, but which is not so inserted”); Osburn v. State, 7 Ohio 212, pt. I, 215 (1835) (“We find nothing in the record to sustain the second assignment of error as a matter of fact. No notice is taken of any refusal to sign a bill of exceptions, or of any judge erasing his name after having signed it. The record only is before us, on this writ of error, and we can examine no allegation, in respect to facts, not embodied in it”); Acheson v. Western Reserve Bank, 8 Ohio 117, 119 (1837) (“Our practice act, section 96, provides that in civil cases the bill of exceptions may be made part of the record, if the excepting party request it. The court have repeatedly ruled that if a party would avail himself, upon error, of exceptions taken, at the trial in the common pleas, he must cause such exceptions to be made part of the record”). Perkins & Osborn charged Joseph Smith $25.00 for the trial, noting “Oct. T[erm]—trial Rounds Qui Tam against you.” They charged another $10.00 for “drawing bill of Exceptions for writ of Error.” They also billed Smith for their representation of Sidney Rigdon, charging him $25.00 for the trial and $10.00 for the bill of exceptions. Billings of Perkins & Osborn.
191. Act to organize the judicial court (passed on February 7, 1831), sec. 2, provided that the Ohio Supreme Court had “appellate jurisdiction from the court of common pleas, in all civil cases in which the court of common pleas has original jurisdiction.” Statutes of the State of Ohio (1841), 222. Section 103 further explained: “That final judgments in the courts of common pleas, may be examined and reversed or affirmed, in the supreme court holden in the same county, upon a writ of error, whereto shall be annexed and returned therewith, at a day and place therein mentioned, an authenticated transcript of the record and assignment of error, and prayer for a reversal, with a citation to the adverse party, or his attorney.” Act to organize the judicial court, 222, 678–79. Practice of the Courts Act, sec. 108, 681 (“That in civil cases an appeal shall be allowed, of course, to the supreme court, from any judgment or decree rendered in the court of common pleas, in which such court had original jurisdiction”).
192. Act to organize the judicial court, sec. 109, 682, provided that “the party desirous of appealing his cause to the supreme court, shall, at the term of the court of common pleas in which judgment or decree was rendered, enter on the records of the court, notice of such intention.”
193. If the adverse party collects on the judgment, hence no stay of execution was granted by the trial court, the appeal bond becomes unnecessary. Cass v. Adams, 3 Ohio 223, 223–224 (1827) (Court held that an execution on goods by a fieri facias writ thereby put property in the hands of the sheriff pending the appeal made the requirement for an appeal bond as an unnecessary “cumulative remedy”).
194. In Stanbery v. Mitten, 6 Ohio 546, 547 (1828) the court held that section 109 of the Act to regulate the practice of the judicial courts “provides that the bond required to perfect an appeal from that court shall be approved by its clerk. It is his duty to judge of the sufficiency of the bond and of the security. This is a ministerial act of his, and this court has in the way no control over it. When the appeal bond is approved by the clerk and filed, the rights of the appellant and the obligations of the appellee are fixed, and a majority of this court are of opinion such rights are beyond the power of this court, upon a mere question of expediency or convenience. A party should reflect upon the effect of his steps before he takes them, and not the court to permit him to retrace them. This court is careful not to interfere with the exercise of such duties, so clearly vested in the clerk and the party, in order to substitute its own discretion.”
195. Stanbery v. Mitten, 6 Ohio 546, 547 (1828).
196. Work v. Massie, 6 Ohio 503, 503 (1834) (“Section 109 of the practice act directs the mode of perfecting an appeal”).
197. A writ of error “is a writ issued out of a court of competent jurisdiction, directed to the judges of a court of record in which final judgment has been given, and commending them . . . to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceedings may be corrected. . . . Its object is to review and correct an error of law committed in the proceeding.” Bouvier, Law Dictionary, s.v. “writ of error”; Jacob, Law-Dictionary, s.v. “error.”
198. Duckwall v. Weaver, 2 Ohio 13, 13 (1825) (“The defendants objected to the whole of the evidence offered; the objection was overruled, and a bill of exceptions taken. A verdict was found for the plaintiff. Judgment entered, and a writ of error taken”); Moore v. Beasley, 3 Ohio 294, 294 (1827) (“He then moved the court to instruct the jury that the case was within that statute, which was also refused, and bills of exception were taken. A verdict and judgment were rendered for the plaintiff, and a writ of error taken to reverse it, on the matters stated in the bills”); King v. Kenny, 4 Ohio 79, 80 (1829) (“Upon this bill of exceptions the writ of error was founded”); Trustees of Cincinnati Tp. v. Ogden, 5 Ohio 23, 23 (1831) (“This cause came before the court on a writ of error to the court of common pleas of Hamilton county. The case was this, as presented in a bill of exceptions”); Eldred v. Sexton, 5 Ohio 216, 216 (1831) (“The defendant took his bill of exceptions. There was a verdict and judgment for the plaintiff for fifty-one dollars and five cents and costs, to reverse which this writ of error was brought”); James v. Richmond, 5 Ohio 337, 338 (1832) (“To this decision of the court, the defendant, by his counsel, excepted, and his bill of exceptions was sealed. A judgment having been rendered against the defendant, this writ of error is prosecuted to reverse that judgment”).
199. Practice of the Courts Act, sec. 3, 651.
200. Practice of the Courts Act, sec. 112, 683. “That when any cause is removed by appeal into the supreme court, the appeal shall be tried on the pleadings made up in the court of common pleas, unless for good cause shown, and on the payment of costs, the said court should permit either or both parties to alter their pleadings; in which case, such court shall lay the party under such equitable rules and restrictions as they may conceive necessary, to prevent delay.” Practice of the Courts Act, sec. 114, 684. Either party to the appeal can request a copy of this transcript that the clerk of the court of common pleads can provide at the parties’ “own proper costs and charges.” Practice of the Courts Act, sec. 112, 683.
201. The judgment in Rounds v. Smith, Geauga Court of Common Pleas, Journal N, 237, noted: “Debt—This day came the parties and thereupon came a Jury to wit: Guy Wyman, Caleb E. Cummings, John A. Ford, William Coafts, David Smith, George Patchin, Ira Webster, Stephen Hulbert, William B. Crothers, Jason Manley, Joseph Emerson and Thomas King, who being duly empannelled & sworn, will & truly to try the issue joined between the parties, do find that the deft [defendant] is indebted to the plff [plaintiff] in the sum of one thousand dollars. It is therefore considered by the Court that the plff recover against the deft. the said sum of one thousand dollars his deft aforesaid and also his costs.” The judgment in Rounds v. Rigdon, Geauga Court of Common Pleas, Journal N, 237, noted: “Debt—This day come the parties & thereupon came a Jury to wit: Amos Cunningham, John McMackin, Erastus Spencer, Gerry Bates, George D. Lee, Wm C. Matthews, William Graham, Benjamin Adams, Harrison P. Stebbins Jonathan Hoyt, Heman Dodge and Thaddeus Cook, who being duly empanelled and sworn well and truly to try the issue joined between the parties, do find that the deft is indebted to the plff in the sum of one thousand dollars. It is therefore considered by the Court that the plff recover against the deft. his debt aforesaid, and also his costs.”
202. See pages 63–64.
203. See notes 120, 121.
204. The plaintiff’s costs were broken down as follows: $5.31 in clerk costs, $4.54 in sheriff costs, $2.50 in witness fees, $6.00 in jury fees and $5.00 in attorney’s fees. Smith’s Trial Bill of Costs.
205. Smith’s costs of $0.75 were for clerk costs. Smith’s Trial Bill of Costs.
206. The plaintiff’s costs were broken down as follows: $5.04 in clerk costs, $4.48 in sheriff costs, $2.25 in witness fees, $6.00 in jury fees and $5.00 in attorney’s fees. Rigdon’s Trial Bill of Costs.
207. Rigdon’s costs of $0.81 were for clerk costs. Rigdon’s Trial Bill of Costs.
208. Dean C. Jessee, Mark Ashurst-McGee, and Richard L. Jensen, eds., Journals, Volume 1: 1832–1839, vol. 1 of the Journals series of The Joseph Smith Papers, ed. Dean C. Jessee, Ronald K. Esplin, and Richard Lyman Bushman (Salt Lake City: Church Historian’s Press, 2008), 283.
209. Smith, History, vol. B-1, p. 780 (“on the evening of the 12th of Jan <12. Joseph & Sidney left Kirtland for Far West.> <about 10 o’clock> we left Kirtland, on horseback, to escape Mob violence which was about to burst upon us under the color of Legal process to cover their hellish designs, and save themselves from the just jud[g]ment of the Law”). On the satisfaction of debts owed by Joseph Smith and the Temple Committee, see Gordon A. Madsen, “Tabulating the Impact of Litigation on the Kirtland Economy,” in Madsen, Walker, and Welch, Sustaining the Law, 233–42.
210. An act regulating judgments and executions (passed March 1, 1831), Statutes of the State of Ohio (1841), sec. 1, 467 (hereafter cited as Judgment and Execution Act).
211. Judgment and Execution Act, sec. 2, 468.
212. Judgment and Execution Act, sec. 2, 468.
213. Fieri facias “is the name of the writ of execution. It is so called because when writs were in Latin, the words directed to the sheriff, were, quod fieri facias de bonis et catallis, &c, that you cause to be made of the goods and chattels &c. The foundation of this writ is a judgment for debt or damages, and the party who has recovered such a judgment is generally entitled to it, unless he is delayed by the stay of execution which the law allows in certain cases after the rendition of the judgment, or by proceeding in error.” Bouvier, Law Dictionary, s.v. “fieri facias”; Jacob, Law-Dictionary, 3:43, s.v. “fieri facias.”
214. Judgment and Execution Act, sec. 3, 469–70.
215. Judgment and Execution Act, sec. 9, 472.
216. Judgment and Execution Act, sec. 10, 473. These appraisers were put under oath affirming to their impartiality to perform the appraisals. The appraisals of “an estimate of the real value in money, of said estate, upon actual view of the premises” were signed by the appraisers and then returned to the sheriff. Judgment and Execution Act, sec. 10, 473. Copies of the appraisals were then filed with the clerk of the court from which the writ was issued. Judgment and Execution Act, sec. 11, 473. At the sale, the property could not be sold for less than two-thirds of appraised value. Judgment and Execution Act, sec. 12, 474.
217. Notice of the sale of such property had to take place at least thirty days before the sale in the same manner as the notice for personal property. Judgment and Execution Act, sec. 14, 474.
218. Interestingly, the collection efforts against Rigdon as delineated on his Trial Bill of Costs were also duplicated on Smith’s Trial Bill of Costs, although it is clear by reading the notations that the efforts were solely against Rigdon.
219. Rigdon Trial Bill of Costs.
220. Abel Kimball, “Sheriff’s Sale,” Painesville Telegraph, February 22, 1838, 3.
221. These fees included $91.50 to the sheriff and $0.50 to the clerk of court. Rigdon Trial Bill of Costs.
222. The Rigdon Trial Bill of Costs identifies this real property as follows: “part of lots five & six on Block 114 in Kirtland City Plat in Kirtland township Geauga County Ohio supposed to contain one acre of land more or less.”
223. Rigdon Trial Bill of Costs.
224. William Marks (1792–1872) was a farmer, printer, publisher, and postmaster. Marks was born at Rutland, Vermont. He lived at Portage, New York, where he was baptized into the LDS Church by April 1835. He moved to Kirtland, Ohio, by September 1837, and was appointed a member of the Kirtland high council on September 3, 1837, and agent to Bishop Newel K. Whitney on September 17, 1837. Marks was made president of the Kirtland stake in 1838. Susan Easton Black, Early Members of the Reorganized Church of Jesus Christ of Latter Day Saints, 6 vols. (Provo, Utah: Religious Studies Center, Brigham Young University, 1993), 4:228–29; Lyndon W. Cook, The Revelations of the Prophet Joseph Smith: A Historical and Biographical Commentary of the Doctrine and Covenants (Salt Lake City: Deseret Book, 1985), 230–31.
225. Oliver Granger (1794–1841) was born at Phelps, New York. He was the sheriff of Ontario Co. and a colonel in the militia. Granger was baptized into the LDS Church and ordained an elder by Brigham and Joseph Young, c. 1832–33. He moved to Kirtland, Ohio, in 1833 and was appointed to the Kirtland high council on October 8, 1837. Obituary Notices of Distinguished Persons, s.v. Oliver Granger, CHL; Kirtland Council Minute Book, October 8, 1837; Obituary of Oliver Granger, Times and Seasons 2 (September 15, 1841): 550.
226. Joseph Smith and Sidney Rigdon appointed Oliver Granger as their “agent and attorney” relating to the Safety Society on September 27, 1837, the day before leaving Ohio for a visit with Missouri Saints. The full appointment stated:
Kirtland Ohio Set 27-1837
Know all men by these present that we Joseph Smith Jr. and Sidney Rigdon hereby appoint and constitute Oliver Granger our proper agent and attorney to act in our name to all interests and purposes as we ourselves could act if we were personally present: to manage conduct and bring to settlement a business which we had with J. F. Scribner of Troy City in the state of New York in relation to the paper of Kirtland Safety Society
Given under our hand at Kirtland Geauga County Ohio the day and date above written.
Joseph Smith Jr
Power of Attorney from Sidney Rigdon and Joseph Smith Jr. to Oliver Granger, September 27, 1837, Joseph Smith Collection. William Marks was never made agent or given power of attorney by either Smith or Rigdon. However, Marks was appointed as agent for Newel K. Whitney on September 17, 1837. Kirtland Council Minute Book, September 17, 1837. Further, Smith and Rigdon deeded land to Marks starting in April 1837 for Marks to use to settle debts in Kirtland against them and/or the Church. See Deed from Rigdon to Marks, April 7, 1837, catalog #20240, vol. 23, 535, FHL; Deed from Smith to Marks, April 7, 1837, catalog #20240, vol. 23, 538, FHL; Deed from Smith to Marks, April 10, 1837, catalog #20240, vol. 23, 535–36, FHL; Deed from Smith to Marks, April 10, 1837, catalog #20240, vol. 23, 536–37, FHL; Deed from Smith to Marks, April 10, 1837, catalog #20240, vol. 23, 538, FHL; Deed from Smith to Marks, April 10, 1837, catalog #20240, vol. 23, 539, FHL; Deed from Smith to Marks, April 10, 1837, catalog #20240, vol. 24, 189, FHL.
227. Grandison Newell to William Marks and Oliver Granger, March 1, 1838, Whitney Collection.
228. Lyman Cowdery (1802–1881) was a lawyer, constable, and probate judge. He was born at Wells, Vermont. He was the older brother of Oliver Cowdery.
229. See An act regulating judgments and executions (passed March 1, 1831), Statutes of the State of Ohio (1841), sec. 2, 468.
230. Gordon A. Madsen, to whom the author is again indebted, recently uncovered these property records. These records confirm that some of the debts of the Church were satisfied by the direct transfer of property from members to creditors rather than transferring the property first to an agent of the Church to be used to satisfy these outstanding obligations.
231. John Isham (1788–1840) was born in Massachusetts. He married Nancy Porter in 1816 and they moved to Madison, Geauga County, Ohio, by 1820. They moved to Kirtland c. 1837–38. Isham was involved in several land transactions relating to the settlement of debts of the LDS Church in 1838 in addition to the above-noted transfer. This included $1,100 of land that he transferred to William Marks as agent for the Church “according to the directions of the presidency.” Accounts Payable, February 1, 1838, and March 1, 1838, Joseph Smith Collection. John Isham died in Nauvoo, Illinois. History of Geauga and Lake Counties, Ohio, 233; Obituary for John Isham, Times and Seasons 1 (May 1840): 111.
232. Geauga County Deed Book, book 25, 423–24, Geauga County Archives.
233. Winslow Farr (1794–1865) was born in New Hampshire and married Olive Freeman in 1816. He was baptized into the LDS Church in 1832 in Vermont, and he and his family moved to Kirtland, Ohio, in the spring of 1837. They moved to Missouri by the summer of 1838 and then to Nauvoo by May 1839. He died in Utah.
234. Geauga County Deed Book, book 26, 157–58.
235. $1,600 from the Assignment of Claims and $604.50 from the sale of Rigdon’s personal property.
236. While the majority of the members of the LDS Church followed the leadership of Brigham Young and the Quorum of the Twelve, several relatively small groups also emerged claiming successorship to Joseph Smith. These included followers of Sidney Rigdon (Church of Jesus Christ of the Children of Zion ), James J. Strang (Church of Jesus Christ of Latter Day Saints [Strangite] ), Lyman Wight (Church of Christ [Wightite] ), William E. McLellin and David Whitmer (Church of Christ [Whitmerite] ), Alpheus Cutler (Church of Jesus Christ [Cutlerite] ), Joseph Smith III (Reorganized Church of Jesus Christ of Latter Day Saints [now Community of Christ] ) and Granville Hedrick (Church of Christ [Temple Lot] ).
237. For a brief rehearsal of these events, see Madsen, “Tabulating the Impact of Litigation on the Kirtland Economy,” 244–45.
238. Hall, Thomas Newell and His Descendants, 232.
239. John R. French (1819–1890) was a journalist and politician born in Gilmanton, New Hampshire; he died in Boise, Idaho. He was a printer and editor for the New Hampshire Statesman, in Concord, the publisher and associate editor of the Herald of Freedom, also in Concord, which was one of the first of the New England antislavery newspapers, and the editor of the Eastern Journal in Biddeford, Maine, before moving to Painesville, Ohio, in 1854. There he was the editor of the Painesville Telegraph from 1854 to 1858. History of Geauga and Lake Counties, 29. He was a member of the Ohio House of Representatives representing Lake County (formerly part of Geauga County) from 1858 to 1859. W. E. Halley and John P. Maynard, comps., Manual of Legislative Practice in the General Assembly of Ohio (Columbus, Ohio: F. J. Heer Printing Co., 1920), 213, 265. In 1861, he was appointed to a clerkship in the Treasury Department in Washington, and in 1864 was appointed by President Lincoln a member of the Board of Direct Tax Commissioners for North Carolina. John Niven, ed., The Salmon P. Chase Papers, vol. 1, Journals, 1829–1972 (Kent, Ohio: Kent State University Press, 1993), 359. He was a delegate to the State Constitutional Convention in 1867, and in 1868 was elected to Congress from the North Carolina district as a Republican. He was not reelected after his term but was chosen sergeant-at-arms of the United States Senate, and he held the office for nine years. In 1880, he was appointed secretary and disbursing officer of the Ute Commission and moved to Idaho. At the time of his death, he was editor of the Boise City Sun. Appletons’ Annual Cyclopedia and Register of Important Events of the Year 1890, vol. 15 (New York: D. Appletons & Co., 1891), 647.
240. On February 2, 1859, the Ohio House Journal notes, “Mr. French presented the petition of Grandison Newell, praying the State to assign to him its interest in certain judgments. Which was referred to the committee on Claims.” General Assembly of the State of Ohio, Journal of the House of Representatives of the State of Ohio, Fifty-Third General Assembly (Columbus: Richard Nevins, 1859), 184. On February 28, 1859, the committee “to whom was referred the petition of Grandison Newell reported by bill; H.B. No. 444; A bill for the relief of Grandison Newell. Said bill was read for the first time.” House Journal, 328. The bill was read for the second time on March 1, 1859. House Journal, 334. The bill then came up for vote on March 1, 1859, where it passed on a vote of 81 yeas and no nays and the “title as aforesaid was agreed to.” House Journal, 336–37. The following day the bill was forwarded to the president of the Ohio Senate, noting, “The House has passed the following bill, and requests the concurrence of the Senate in the same: H.B. No. 444; For the relief of Grandison Newell,” where it was read for the first time. General Assembly of the State of Ohio, Journal of the Senate of the State of Ohio, Fifty-Third General Assembly (Columbus: Richard Nevins, 1859), 212. It was read a second time on March 2, 1859, and “committed to a committee of the whole Senate.” Senate Journal, 213. On March 3, 1859, “The Senate resolved itself into a committee of the Whole on the orders of the day, Mr. Miles in the chair, and after some time spent therein, rose, the same was agreed to. Said bill was then ordered to be read a third time now. Said bill was then read and the third time, and the question being, ‘Shall the bill pass?’ The yeas and nays were ordered, and resulted, yeas 23, nays 5.” Senate Journal, 222. On March 9, 1959, “The joint standing committee on Enrollment report that the following joint resolutions and bills are correctly enrolled: . . . H.B. No. 444; An act for the relief of Grandison Newell.” House Journal, 385. The following day, the Speaker of the House of Representatives signed the bill. Senate Journal, 248.
241. Henry Holcomb, Newell’s great-grandson-in-law, noted that Grandison Newell “early became involved in serious controversies with the Mormons located in Kirtland and after a series of litigations succeeded in consequence of their violation of the currency laws, in expelling them from the state.” Henry Holcomb, “Personal Experience’s [sic] after the Civil War,” 52, MSS 3368, box 1, Henry Holcomb Papers, Western Reserve Historical Society, Cleveland, Ohio.
242. Hall, Thomas Newell, and His Descendants, 135, stating, “The following is a copy of Mr. Newell’s own manuscript: ‘Judgment obtained against Joseph Smith, Jr., and Sidney Rigdon for $1,000 each at the fall term of 1838, in Geauga county, for issuing unauthorized bank paper. Samuel D. Rounds, the complainant, I bought off, and gave him $100.’”
243. Key v. Vattier, 1 Ohio 132, 133 (1823).
244. Bouvier similarly defined maintenance as “a malicious, or at least, officious interference in a suit in which the offender has no interest, to assist one of the parties to it against the other, with money or advice to prosecute or defend an action, without any authority of law.” Bouvier, Law Dictionary, 2:88; Jacob, Law-Dictionary, s.v. “maintenance,” 4:215–17. See also Joseph Chitty, A Practical Treatise on the Criminal Law, vol. 1 (Philadelphia: Isaac Riley, 1819), 114–15; Blackstone Commentaries, vol. 5 (Philadelphia: William Young Birch and Abraham Small, 1803), 134.
245. Newell admitted to Henry Holcomb that he had “prosecuted and collected the prosecution’s part of the fine.” Henry Holcomb, Events of Personal and Family History 1830–64, 377, MSS 3368, box 1, Henry Holcomb Papers. Holcomb further notes, “As Mr. Newell told me that he had collected his $1,000.00 (the part of the fine that went to the informer) . . . Mr. Newell never told me how he collected his fine or what the payment consisted in (or if he did I do not retain it in my memory).” Henry Holcomb, Red Scrapbook #2, 52, MSS 3368, box 1, Henry Holcomb Papers.
246. See pages 61 n. 119, 63–64, and 71–72.
247. “Presentment of the grand jury” refers to the written “accusation so presented to a grand jury.” Bouvier, Law Dictionary, 2:289–90. Turk v. State, 7 Ohio 240, 242, part II (1836) (“The oath of a grand juror requires him to ‘diligently inquire and true presentment make of all such matters and things as shall be given’ him ‘in charge, or otherwise come to’ his ‘knowledge, touching his present service,’ etc.”).
248. See note 135. It is this confusion that may have resulted in some wrongfully alleging that this case against Joseph Smith was a criminal one.
249. See pages 69–70.
250. See note 139.
251. See note 139, citing Swan.
252. See pages 81–82.
253. Geauga County was formed on December 31, 1805, the second county in the Connecticut Western Reserve. It was reduced in size with the formation of Cuyahoga County in June 1810 and Ashtabula County in January 1811. Pioneer and General History of Geauga County with Sketches of Some of the Pioneers and Prominent Men (n.p.: Historical Society of Geauga County, 1880), 20. It was further reduced in 1840 with the creation from it of Lake County. Painesville became the county seat for Lake County at that time. History of Geauga and Lake Counties, 23.
254. See appendix C for a summary of the legal events in this litigation.
255. See page 113.
256. Lord Sterling (1805–1905) was elected probate judge for Lake County in 1854, commencing a three-year term in February 1855. He was reelected for a second term expiring in February 1861. Judge Sterling was admitted to practice law in Ohio in 1837 and began his practice in Willoughby, Ohio. He brought several suits against the Mormons, including Holmes v. Smith and others, June 5, 1837, Geauga Court of Common Pleas (Common Pleas Record book U, 86, Geauga County Archives) and Stannard v. Young and Smith, April 3, 1838, Geauga Court of Common Pleas (Common Pleas Record book U, 586, Geauga County Archives). Upon election as a probate judge in 1854, he moved to Painesville, Ohio. In 1878, he was elected prosecuting attorney for Lake County. C. S. Williams, Williams’ Ohio State Register and Business Mirror, for 1857: First Issue (Cincinnati, Ohio: By the author, 1857), 85; Albert M. Sterling and Edward B. Sterling, The Sterling Genealogy (New York: Grafton Press, 1909), 469–71. Judge Sterling signed the administrator’s letter appointing Holcomb. MS, October 29, 1860, Lake County Probate Court Records, Painesville, Ohio.
257. Constitution of the State of Ohio, art. IV, sec. 7.
258. The difference between an administrator and an executor is that an executor is designated by will and approved by the court, while the court appoints an administrator when a person dies without a will (intestate).
259. In 1853, the Ohio General Assembly adopted a completely revised code of civil procedure. “An act to establish a Code of Civil Procedure,” passed March 11, 1853, Acts of a General Nature Passed by the Fiftieth General Assembly of the State of Ohio (Columbus: Osgood and Blake, 1853). This revision was patterned after the 1848 revisions made under the direction of David Dudley Field in New York. These changes were sweeping in nature, making a clean break from the English system of writs and complex form pleadings to merging actions in law and equity into one action using simple, concise language. As explained in the report to the New York legislature in 1850: “This Code is intended to embody the whole law of the state, concerning judicial remedies in civil cases . . . and all of the common law, on the subject of civil remedies . . . The purpose of the constitutional provision and of the statute under which this code is prepared, was to make legal proceedings more intelligible, more certain, more speedy, and less expensive. Heretofore the records of the courts, have been sealed books to the mass of the people . . . In a country where the people are sovereign, where they elect all officers, even the judges themselves, where education is nearly universal, it was not long possible, to keep the practice of the courts enveloped in mystery.” Arphaxed Loomis, David Graham, and David Dudley Field, The Code of Civil Procedure of the State of New York (Albany: Weed, Parson and Co., 1850), iii, v, viii. Ohio would be an early adopter of what would be referred to as the “Field Code.” Edward Walford, Men of the Time: A Biographical Dictionary of Eminent Living Characters, (including Women) (New York: Routledge, Warne and Routledge, 1862), 284. The Probate Act, therefore, must be read in light of the Ohio 1853 Code of Civil Procedure.
260. Act to provide for the settlement of the estates of deceased persons, Statutes of the State of Ohio of a General Nature, in Force January 1, 1854 (Cincinnati: H. W. Derby and Co., 1854), sec. 1, 365 (hereafter cited as Probate Act).
261. Probate Act, sec. 12, 366 (emphasis added).
262. Probate Act, sec. 12, 367.
263. Probate Act, sec. 12, 367.
264. Probate courts were established by the 1851 Constitution of the State of Ohio to be located in each county in the state. Constitution of the State of Ohio, art. IV, secs. 7 and 8. Probate courts had exclusive jurisdiction to appoint administrators. Probate Act, sec. 2 (2), 746.
265. Henry Holcomb (1830–1919) was a hardware store owner and furnace manufacturer in Painesville, Ohio. He was born in Youngstown, Mahoning County, Ohio. He served as a band musician in the 2nd Brigade, 3rd Division, 23rd Army Corps during the American Civil War. Holcomb, “Personal Experience’s.”
266. Grandison Newell married Betsey Smith on April 16, 1807. They had eight children. Their oldest was a daughter, Saloma, born on May 24, 1810. Saloma married Harvey Sawyer on March 30, 1828. They had two children: a son, Addison, and a daughter, Emily. Emily was born on August 7, 1834. She married Henry Holcomb on August 30, 1852. They had two daughters, Eva, born on May 15, 1855, and Urania, born on August 9, 1862. Hall, Thomas Newell, and His Descendants, 132, 138, 140.
267. Holcomb, Red Scrapbook #2, 76½. Newell would die at Holcomb’s home on June 10, 1874, in Painesville. Holcomb details the events leading to his death at age 88: “Monday, April 20th  . . . I saw a runaway horse with the front wheels of a wagon attached dashing down Mentor and Washington Streets. At the corner of Washington Street and a lane extending from the front of the High School building to Mentor Avenue, they came up behind Mr. Newell, who was walking towards town, and striking him, knocked him against the fence and left him lying senseless on the sidewalk. After [Newell was] carried into the residence of Dr. Gage, I was notified, and after hitching Dan to the Rockaway I drove down and brought him home. He was found to have received serious abrasions on his head and arm and was considerably bruised. In about a week his wounds began to heal and he was able to walk back and forth outside. But on the last of May or first of June, he was walking back and forth on the porch for exercise, he remarked that he was not feeling so well, and expressed a regret that he had not been killed outright, as it would have relieved him from his sufferings. Soon after making the remark, he took to his bed, and rapidly began to decline. He was quite feeble the 7th, helpless the 8th and died the 10th.” Holcomb, “Personal Experience’s,” 50–51.
268. Holcomb, Events of Personal and Family History, 377–78.
269. Holcomb, Red Scrapbook #2, 76½.
270. Holcomb, Red Scrapbook #2, 76½–76¾.
271. Holcomb, Red Scrapbook #2, 76¾–76⅞. This entry is signed and dated at the end of this quote, “Henry Holcomb. Painesville, O. Sept. 25, 1909.” The notations to fractional pages were apparently used to add pages to the scrapbook.
272. See pages 102–3.
273. Dixon v. Cassell, 5 Ohio 533, 533 (1832).
274. Bustard v. Dabney, 4 Ohio 68, 68, 71 (1829). The court further found: “If the widow, or next of kin, will not accept the trust, then any creditor of the intestate, who shall apply, may be appointed . . . Pursuing the provisions of this law, the complainant has complete and adequate remedy. He is a ‘creditor,’ and, if no other person will do it, may take letters of Administration.”
275. Common Pleas Record 36:339, October 30, 1860, Geauga County Archives; see also Administrator’s Letter, October 29, 1860, Lake County Probate Court Records; Journal Record, October 29, 1860, book D, 103, Lake County Probate Court Records.
276. Probate Act, sec.13, 367.
277. Probate Act, sec.13, 367.
278. Lake County Probate Court Records, October 29, 1860; Journal Record, October 29, 1860, book D, 103.
279. Thomas Wilder (1785–1878) was Grandison Newell’s brother-in-law, having married Deidamia Newell (1788–1860), Grandison’s younger sister, in 1808. Thomas and Deidamia named one of their sons Grandison Newell. Hall, Thomas Newell, and His Descendants, 142, 229–33; Almira L. White, Genealogy of the Descendants of John White of Wenham and Lancaster, Massachusetts (1638–1900), vol. 1 (Haverhill, Mass.: Chase Brothers, 1900), 472.
280. An act to establish a code of civil procedure, passed March 11, 1853, Acts of a General Nature passed by the Fiftieth General Assembly of the State of Ohio (Columbus: Osgood and Blake, 1853) (“Code of Civil Procedure”), sec. 422, 126, provided: “If execution shall not be sued out within five years from the date of any judgment, that now is or may hereinafter be rendered in any court of record in this State, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment creditor.” Section 421 of the Code of Civil Procedure further provided that the “lands and tenements of the debtor within the county where the judgment is entered, shall be bound for the satisfaction thereof, from the first day of the term, at which judgment is rendered.”
281. Revival of a judgment by reference was governed by the provisions for reviving a cause of action against a deceased person. Code of Civil Procedure, sec. 417, 125 (“If a judgment become dormant, it may be revived in the same manner, as prescribed for reviving actions before judgment”).
282. Code of Civil Procedure, sec. 410, 124. “If either or both the parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered, and execution awarded, as might or ought to be given or awarded against the representatives, real, or personal, or both, of such deceased party.” Code of Civil Procedure, sec. 416, 125.
283. See pages 94–95.
284. Chattels are “any article of movable good.” Noah Webster, An American Dictionary of the English Language (New York: S. Converse, 1828) s.v. “chattel”; Chattels “is a term which includes all kinds of property except the freehold or things which are parcel of it.” Bouvier, Law Dictionary, s.v. “chattels.”
285. This motion is found both within the general pleadings in the Common Pleas Record 36:339, MS, Geauga County Archives, October 30, 1860 (the “1860 Common Pleas Record”), as well as a separate pleading captioned as “Motion to revive Judgment,” in the Common Pleas Journal, book R, 208–9, October 31, 1860, Geauga County Archives (the “Motion to Revive”).
286. Horace Wilder (1802–1889) was born in West Hartland, Connecticut, and graduated from Yale College in 1823. After practicing law in both Connecticut and Virginia, he moved to Ohio in 1827 and was admitted to the Ohio bar the following year. He was elected prosecuting attorney for Ashtabula County in 1833. In 1855, he was elected judge of the Court of Common Pleas of the ninth judicial district (composed of Ashtabula, Geauga, and Lake Counties) to fill the vacancy of Judge Reuben Hitchcock. He formed a law partnership with Edward Fitch in 1863 under the name of Wilder & Fitch. That partnership lasted only about a year because Wilder was selected as a member of the Ohio Supreme Court in 1864. He sat on the Ohio Supreme Court only until 1865 and retired in 1867 when he moved to Red Wing, Minnesota, where he died. George I. Reed, ed., Bench and Bar of Ohio (Chicago: Century Publishing and Engraving, 1897), 231; Levi J. Burgess, Reports of Cases Argued and Determined in the Supreme Court of Ohio (Albany: Banks and Brothers, 1891), xi–xii; William B. Neff, Bench and Bar of Northern Ohio (Cleveland: Historical Publishing, 1921), 67.
287. “The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died, or whose power ceased, suggesting his death, or the cessation of his powers, which, with the names and capacities of his representatives, or successor, shall be stated in the order.” Code of Civil Procedure, sec. 404, 123.
288. Code of Civil Procedure, sec. 405, 123 (“If the order is made by the consent of the parties, the action shall forthwith stand revived.”). The court record noted that, “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.” 1860 Common Pleas Record.
289. Joseph and Emma Smith had ten children: Alvin Smith (b. June 15, 1828, d. June 15, 1828), Thaddeus and Louisa Smith (b. April 30, 1831, d. April 30, 1831), Joseph Murdock Smith (b. April 30, 1831, d. March 29, 1832), Julia Murdock Smith (b. April 30, 1831, d. Sept. 12, 1880), Joseph Smith III (b. Nov. 6, 1832, d. Dec. 10, 1914), Frederick Granger Smith (b. June 20, 1836, d. April 13, 1862), Alexander Hale Smith (b. June 2, 1838, d. Aug. 12, 1909), Don Carlos Smith (b. June 13, 1840, d. Aug. 15, 1841), and David Hyrum Smith (b. Nov. 17, 1844, d. Aug. 29, 1904). At the time that the judgment was revived all the living children were in Nauvoo, Illinois.
290. Code of Civil Procedure, sec. 406, 123–24.
291. Section 72 provided: “The publication must be made six consecutive weeks, in some newspaper printed in the county where the petition is file, if there be any printed in such county; and if there be not, in some newspaper printed in this State, of general circulation in that county.” Code of Civil Procedure, sec. 72, 68.
292. On April 6, 1860, a conference was held in Amboy, Illinois, where Joseph Smith III, Joseph Smith Jr.’s oldest surviving son, was sustained as the “Prophet, Seer, and Revelator of the Church of Jesus Christ” and ordained “President of the High Priesthood of the Church.” Thus would be the formal organization of what would become the Reorganized Church of Jesus Christ of Latter Day Saints, now the Community of Christ. The History of the Reorganized Church of Jesus Christ of Latter Day Saints, vol. 3 (Independence, Mo.: Herald House, 1867), 250–51. The headquarters for the Reorganized Church would be in Nauvoo, Illinois, until January 1866, when Joseph Smith III moved to Plano, Illinois. Roger D. Launius, Joseph Smith III—Pragmatic Prophet (Urbana: University of Illinois Press, 1995), 149. Emma Smith lived in Nauvoo until her death in 1879.
293. Petition to Sell Lands, September 19, 1861, Lake County Courthouse, Painesville, Ohio; Journal Record, October 29, 1860, book D, 175. This petition could have been filed “either in the court of common pleas of the county in which the real estate of the deceased, or any part thereof, is situated, or in the court which issued his letters testamentary or of administration.” Probate Act, sec. 118, 382.
294. Milton C. Canfield (c. 1821–1875) was elected probate judge for Geauga County in 1858 for his first three-year term. He served as probate judge until 1866. He came from one of the most prominent families in Chardon, Ohio. He was the co-editor of the Free Democrat from 1849 to 1850. He was the prosecuting attorney for Geauga County from 1847 to 1850 and 1854 to 1858. He was in law partnership with his cousin, D. W. Canfield in Chardon, from 1866 to 1871. He served as mayor of Chardon in 1870. He was elected as a judge on the court of common pleas in 1871 and served there until his death. Pioneer and General History of Geauga County, 64, 68, 70, 344, 345; History of Geauga and Lake Counties, 23, 103.
295. Code of Civil Procedure, sec. 423 noted: “The writ of execution against the property of the judgment debtor, issuing from any cord of record in this State, shall command the officer to whom it is directed, that of the goods and chattels of the debtor, he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor.” The Probate Act similarly requires that the personal property be sold first to satisfy any debts of the decedent (sec. 70). “As soon as the executor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased . . . he shall apply to the court of common pleas for authority to sell the real estate of the deceased.” Probate Act, sec. 117, 382.
296. The original appointment of Holcomb as administrator included the appointment of Leonard Rich, George Frank, and Dexter Damon, “whose duty it shall be to have all and singular the said goods and chattels [of Joseph Smith, Jr.] inventoried and appraised.” Lake County Probate Court Records, October 29, 1860. No such inventory or appraisal was ever filed with the court, further supporting the reality that by 1860, Smith had no personal property within the jurisdiction of the court. See also Journal Record, October 29, 1860, book D, 103.
297. The legal description in the Petition to Sell Lands of this parcel is as follows: “Beginning at the center of the highway lately laid out in the north line of lands deeded to Samuel Canfield; thence west sixty-six rods to a post; thence south fifteen rods to a post; thence south 58 degrees west nineteen rods to the lot line; thence south along the lot line 8 rods to a post; thence east parallel with the north line sixty-nine rods to the center of the highway thence bounding on the center of the highway northerly to Mr. Young’s northwest corner; thence west eight rods to a post; thence north eight rods to a post; thence east thirteen rods to the highway; thence northerly bounding on the center of the highway four rods north & south to the place of beginning: Containing thirteen acres of land subject to all legal highways” (spelling corrected).
298. Samuel Canfield (1783–1861) was born in Danbury, Connecticut. He married Martha Sabrina Davenport in 1804. He joined the LDS Church by 1834 and was ordained an elder in March 1835 in Kirtland, Ohio. He purchased stock in the Society. He did not migrate with the Church to either Missouri or Illinois. He died in Newbury, Geauga County, Ohio. Jeannette Grosvenor, Card File of Geauga County, Ohio, Cemetery Inscriptions, ca 1800–1983 (Salt Lake City: Genealogical Society of Utah, 1988), microfilm available in FHL; Historian’s Office of The Church of Jesus Christ of Latter-day Saints, “MHC B-1,” 579; Frederick Novy and Marguerite Lambert, Novy-Garwood Family Records and Connections (Madison, Wis.: Mennonite Family History, 1990), 87–88.
299. The deed to the thirteen-acre property was executed on October 1, 1836, and signed by both Samuel Canfield and Sabrina, his wife. Frederick G. Williams witnessed the signatures as a justice of the peace. The reverse side of the deed notes that the property was actually transferred on October 28, 1836, and recorded on November 12, 1836. It was recorded in the Geauga County Records, book V, 430–31.
300. Henry Holcomb recalled that just after Newell approached him about becoming the administrator of the estate of Joseph Smith for the purpose “to get a title to the property,” he rode with Newell to Kirtland “to see if the property there could be utilized to satisfy the judgment.” When there they were “looking the temple over . . . I remember that I advised him to raze the temple and sell the stones; as that was the surest way to dispose of the Mormon business in that part of the country. But in reply he said the materials wouldn’t sell for enough to pay for tearing the temple down; and that he thought he could get more out of it to sell it for what it would bring. The temple was kept locked, but was empty, deserted, and appeared to be fast dropping to ruin.” Holcomb, Events of Personal and Family History, 377–79.
301. The legal description of this parcel in the Petition to Sell Lands is as follows: “known as part of lot No 30 and is bounded as follows, to wit, on the south by land formerly owned by Isaac Moore; beginning near the North east Corner of the said Moores land in the Center of the road leading from Kirtland to Flats to Chester and running west on the north line of said land twenty two rods; thence north seventeen rods to a stake marked No 1; thence East to the west line of the lot owned by the Methodist Episcopal Society on which their meeting house stands; thence south to the south west corner of said society’s land lot; thence east to the center of the road before mentioned; thence southwardly to the place of beginning containing one acre and one hundred and fifty four and a half rods” (spelling corrected). This legal description was incomplete. While it did identify that the land was within the Kirtland Township, it failed to identify that the Kirtland Township is no. 9 in Lake County or that it was part of Tract 1 within the township (at the time, Kirtland Township was divided into two tracts).
302. For a summary of the chain of title of the Temple property, see appendix D. See also Kim L. Loving, “Ownership of the Kirtland Temple: Legends, Lies, and Misunderstandings,” Journal of Mormon History 30, no. 2 (2004): 1–80.
303. The Kirtland Temple’s footprint is 4,071 square feet. The interior measures 55 feet by 65 feet. The temple’s walls are two feet thick, adding four feet to both its length and width.
304. Spelling corrected.
305. Turhand Kirtland (1755–1844) was born in Wallingford, Connecticut, fought in the American Revolutionary War for New York, and was general land agent and stockholder of the Connecticut Land Company. He owned nearly two thousand acres of land in Kirtland—which is named after him. He never resided in Kirtland but settled in Poland Township, Trumbull County, Ohio, in the southeastern corner of the Western Reserve. Harry F. Lupold and Gladys Haddad, Ohio’s Western Reserve (Kent, Ohio: Kent State University Press, 1988), 61. He was a co-incorporator of the Western Reserve Bank in 1811 and a judge of the court of common pleas for Poland County, a trustee, state representative, and senator for the same county. History of Trumbull and Mahoning Counties, vol. 1 (Cleveland: H. Z. Williams and Bro., 1882), 76, 253, 263, 426.
306. The Connecticut Land Company was formed by a group of private investors in 1795 to acquire three million acres of the Connecticut Western Reserve from the State of Connecticut for $1.2 million. The Connecticut Western Reserve was that portion of land in what is now the northeastern part of Ohio that Connecticut “reserved” when it ceded its western lands to the Federal Government in 1786. The Western Reserve Historical Society, “The Connecticut Land Company and Accompanying Papers,” tract no. 96, part 2 (Cleveland, Ohio, 1916), 69–96.
307. Abstract of Title prepared by George E. Paine, certified on January 5, 1878, containing entries beginning on March 13, 1799, item 1, Community of Christ Library-Archives, Independence, Missouri (hereafter cited as Abstract).
308. Peter French (1774–after 1850) was a farmer and tavern keeper. He was born in New York and moved to what is now Lake County, Ohio, in about 1799, becoming one of the first settlers in that part of the Western Reserve. By 1811, French had moved to Kirtland, where he built Kirtland’s first brick building in about 1830, which was part of this sale to Joseph Coe in 1833. Christopher G. Crary, Pioneer and Personal Reminiscences (Marshalltown, Iowa: Marshall Printing Co., 1893), 6; Anne B. Prusha, A History of Kirtland, Ohio (Mentor, Ohio: Lakeland Community College Press, 1982), 23–26.
309. Abstract, item 5.
310. Joseph Coe (1784–1854) was a farmer born in Cayuga County, New York. He was baptized into the LDS Church and ordained an elder after moving to Kirtland in 1831. He was ordained a high priest in 1831 and served on the Kirtland high council from 1834 to 1837. Minute Book 2, October 1, 1831; February 17, 1834; and September 9, 1837, CHL. He was excommunicated in 1838.
311. Deed, Peter French (and his wife, Sally) to Joseph Coe, book 17, 359, Geauga County Archives.
312. Kirtland Council Minute Book, March 23, 1833.
313. Mortgage, Joseph Coe to Peter French, book 17, 38, Geauga County Archives. Discharge of this mortgage was not recorded until September 18, 1848.
314. Deed, Joseph Coe to Newel K. Whitney & Co., book 17, 360, Geauga County Archives.
315. While holding the Temple Property as bishop for the LDS Church in Kirtland was based on revelation (Kirtland Council Minute Book, June 4, 1833), it is peculiar that Coe did not transfer it to Whitney in his individual (or ecclesiastical) capacity, but rather to his company, Newel K. Whitney & Co. There is no explanation as to why it was transferred to his business rather than to him personally. As discussed herein, Whitney would subsequently transfer it as if he held it personally.
316. Deed, John Johnson (and his wife, Elsey) to Joseph Smith Junior, book 24, 478, Geauga County Archives. The legal description of this deed is materially the same as that noted in the Petition to Sell Lands, but not identical. This description was as follows: “a certain lot piece or parcel of land situated laying and being in Kirtland Township No. 9, in the 9th range of Townships, in the Connecticut Western Reserve, in the State of Ohio, and which is also in the county of Geauga and is known as part of lot No. 30, in tract one and is bounded as follows, to wit: On the south by land belonging to Frederick G. Williams formerly the farm of Isaac Moore, commencing near the northeast corner in the center of the road leading from Kirtland Mills to Chester and running west on the north line of said land 22 rods, thence north 17 rods to a stake marked No. 1, thence east to the center of said road from thence to the place of beginning supposed to contain One Acre and 154½ rods subject to all highways that may be on said land be the same more or less, with all and singular the houses, Woods, water, ways privileges and appurtenances thereto belonging in or any wise appertaining unto him . . .”
317. Deed, Newel K. Whitney (and his wife, Elizabeth Ann) to John Johnson, book 22, 497, Geauga County Archives.
318. Muniment is “a writing by which claims and rights are defended or maintained.” Noah Webster, An American Dictionary of the English Language (New York: S. Converse, 1828), s.v. “muniment.”
319. Douglass v. Scott, 5 Ohio 194, 198 (1831); see also Allen v. Parrish, 3 Ohio 107, 134 (1827) (“John Allen having, at the time he executed the deed to G. W. Allen, an interest in the refugee lands, which he was not prohibited by law from selling, and having conveyed with covenants of general warranty, the subsequent issuing of a patent to him for the land now in controversy, in fee and in severalty, will inure to the benefit of his grantee, and he is estopped; and his heirs, to prevent circuity of action, are rebutted by his covenants from denying that he had title to the particular tract described in such patent.”); and Bond v. Swearingen, 1 Ohio 395, 412 (1824) (“The authorities, both English and American, abundantly and clearly show that had N. Massie, after executing his deed to B. Abrams, acquired, by patent from the government or otherwise, a perfect title to the lands conveyed by him, he, his heirs, and all others claiming under him, would have been estopped from setting up the after-acquired title to the prejudice of his grantee . . . The heirs of Massie, standing in his place and inheriting from him, are bound by his warranty, and estopped by his grant from controverting the goodness of his title at the time he conveyed”).
320. Johnson had an equitable interest in the Temple Property at the time that the legal title was transferred by French to Coe as a result of Johnson having paid the $2,000 down payment.
321. Deed, John Johnson (and his wife, Elsey) to Joseph Smith Junior, book 24, 100, Geauga County Archives.
322. Ohio law provided for holding property in trust for religious societies. An act captioned as “Act securing to religious societies a perpetuity of title to lands and tenements, conveyed in trust for meeting houses, burying grounds, or residence for preachers,” passed on January 3, 1825, Statutes of the State of Ohio (1841), sec. 1, 783 provided: “That all lands and tenements, not exceeding twenty acres, that have been, or hereafter may be conveyed, by devise, purchase or otherwise, to any person or persons, as trustee or trustees, in trust for the use of any religious society within this state, either for a meeting house, burying ground, or residence for their preacher, shall descend, with the improvements and appurtenances, in perpetual succession, in trust, to such trustee or trustees as shall, from time to time, be elected or appointed by any such religious society, according to the rules and regulations of such society, respectively.”
The conveyance to Joseph Smith from John Johnson on May 5, 1834, of the Temple Property appears to have been made in express compliance with this provision. So too is the February 11, 1841, conveyance by William Marks to Joseph Smith of the Temple Property. “This act was intended to remove all difficulty arising from defective conveyances, and seems to us amply sufficient to effect the object, whether the trust be secret and implied, or expressed in the conveyance.” Methodist Episcopal Church of Cincinnati v. Wood, 5 Ohio 283, 287 (1831). Ironically, had the Church been incorporated under Ohio’s “Act in relation to incorporated religious societies,” passed March 5, 1836, Statutes of Ohio (1841), sec. 1, 782, it could not hold any land, “exceeding in quantity, one acre . . . or any other property not exceeding the annual value of one thousand dollars.” Consequently, holding the Temple Property in trust for the Church was the most appropriate and legally available method.
The Church finally incorporated in Ohio in 1841 by an “Act to incorporate the Church of Christ of Latter Day Saints,” Acts of a Local Nature passed by the Thirty Ninth General Assembly of the State of Ohio (Columbus: Samuel Medary, 1841), 8–9. Its original “associates” were Oliver Granger, Thomas Burdick, Daniel Carter, Hiram Winters, and John Knapp.
323. Deed, Joseph Smith Jr. to William Marks, book 23, 536, Geauga County Archives. See note 224 for biographical information about William Marks.
324. See note 226.
325. Deed, William Marks to Joseph Smith Jr., book A, 327, Lake County Court Records.
326. Subsequent to the death of Joseph Smith, the next conveyance of the Temple Property was on November 23, 1845, when William Marks quitclaimed the property to Newel K. Whitney and George Miller, “trustees in trust for the Church of Jesus Christ of Latter Day Saints, and their successors in office.” Deed recorded August 25, 1846, William Marks to Newel K. Whitney and George Miller, book E, 109, Lake County Court Records. As Marks had conveyed all of his interest in the Temple Property to Smith on February 11, 1841, he had nothing to quitclaim to Whitney or Miller by this quitclaim deed. On August 15, 1846, Almon W. Babbitt, Joseph L. Heywood, and John S. Fullmer, as “trustees in trust for the Church of Jesus Christ of Latter-day Saints,” conveyed the Temple Property to Reuben McBride. Deed recorded January 2, 1847, Almon W. Babbitt, Joseph L. Heywood, and John S. Fullmer to Reuben McBride, book E, 227, Lake County Court Records. Whitney and Miller resigned as trustees for the Church on January 24, 1846, and Almon W. Babbitt, Joseph L. Heywood, and John S. Fullmer were appointed to replace them. Reuben McBride conveyed the Temple Property to George Edmunds Jr. on December 14, 1846. Deed recorded January 2, 1847, Reuben McBride (and his wife, Mary Ann) to George Edmunds Jr., book E, 228, Lake County Court Records. George Edmunds Jr. conveyed the Temple Property back to Almon W. Babbitt, Joseph L. Heywood, and John S. Fullmer on April 6, 1847. Deed recorded May 15, 1847, George Edmunds Jr. (and his wife) to Almon W. Babbitt, Joseph L. Heywood, and John S. Fullmer, book E, 228, Lake County Court Records. There the property stayed until the present action brought by Grandison Newell.
327. That the Temple Property was indeed considered an asset of the LDS Church is further evidenced by an action filed by the Church under its incorporated name on September 30, 1844, called the “Church of Christ of Latter Day Saints of Kirtland,” in the Lake County Court of Common Pleas against Jacob Bump (who had aligned with Sidney Rigdon [known as the “Rigdonites”]) to replevin twenty keys to locks and to unlock the temple. The court issued a writ of replevin on September 30, 1844, the day it was filed, but by October 9, 1844, the writ was returned, noting that the sheriff had not found any such keys. The action was dismissed on April 8, 1845, with costs assessed against the plaintiff. Lake County Court of Common Pleas, Journal, book B, 249, 350.
328. Joseph Smith III and Mark H. Forscutt acquired the Temple Property from Russell Huntley for $150 on February 17, 1873. Deed from Russell Huntley to Joseph Smith III and Mark H. Forscutt, book 5, 67, Lake County Court Records.
329. Petition captioned as “The Reorganized Church of Jesus Christ of Latter Day Saints v. Lucius Williams, Joseph Smith, Mark H. Forscutt, The Church in Utah of which John Taylor is president and Commonly known as the Mormon Church & John Taylor President of Said Utah Church,” dated August 18, 1879, Lake County Court Records.
330. An act fixing the rate of interest (passed January 12, 1824), Statutes of Ohio (1854), sec. 1, 481.
331. An act to regulate the fees of clerks of the courts of common pleas (passed May 1, 1852), Statutes of Ohio (1854), sec. 17, 410 (“No interest shall be taxed or collected on the cost bill of any suit or proceeding, had in any of the courts of this state.”).
332. An act relating to dower (passed January 28, 1823), Statutes of Ohio (1854), sec. 1, 329 (“That the widow of any person dying, shall be endowed of one full and equal third part of the lands, tenements and real estate of which her husband was seized, as an estate of inheritance, at any time during the coverture”); Bouvier, Law Dictionary, s.v. “dower”; Allen v. McCoy, 8 Ohio 418 (1838) (a historical examination of the law surrounding the dower interest from English common law to Ohio statutory law).
333. Petition to Sell Lands, September 19, 1861.
334. Probate Act, secs. 122 and 123, 383.
335. This portion of the Petition to Sell Lands noted: “The Petitioner is for want of Knowledge to set forth with certainty the names and places of residence of the heirs of the said Joseph Smith Jr., but says that said decedent died leaving one son who is his heir & entitled to the west estate of inheritance in the premises above described from the said decedent, whose name is Joseph Smith & whose place of residence is Nauvoo aforesaid & is all the heir known to the Petitioner, & if there are others their names & places of residence are wholly unknown to the petitioner” (grammar and spelling corrected).
336. Probate Act, sec. 126, 383.
337. The Press and Advertiser was published in Painesville from 1860 to 1861, when the publishers of the Painesville Telegraph acquired it.
338. It cost $3.12 to print and run this notice. Notice to Widow and Heirs, October 24, 1861, Lake County Courthouse. A copy of the actual notice as printed in the Press and Advertiser was attached to the pleading.
339. The probate court originally appointed Guy Smith, George Frank, and Reuben Harmon as the three appraisers.
340. Probate Code sec. §138 provided: “If the deceased left a widow, entitled to dower, the court shall appoint three judicious, disinterested men of the vicinity, to set off and assign, by metes and bounds, in each, or one or more of the tracts of land, (or specially, as of the rents and profits, if no division can be made,) the dower of the widow of the deceased, and to appraise the premises, subject to the incumbrance of dower so assigned.”
341. Order of Appraisal, October 24, 1861, Lake County Court Records (hereafter cited as Appraisal Order); Journal Record, October 24, 1861, book D, 181.
342. Appointment of Appraiser, November 6, 1861, Lake County Court Records (hereafter cited as Appointment); Journal Record, November 5, 1861, book D, 185.
343. A. S. Richards was a farmer while he lived in Lake County, Ohio. In 1884, he wrote a letter from Washington, D.C., to H. G. Tryon in Lake County reminiscing fondly his days as a farmer in Ohio. The letter is quoted by Tryon in his opening address as chairman of Lake County Institute, an agricultural organization located in Painesville. Thirty-Ninth Annual Report of the Ohio State Board of Agriculture, with an Abstract of the Proceedings of the County Agricultural Societies, for the Year 1884 (Columbus: Myers Brothers, 1885), 575–78.
344. George Frank (1812–1892) moved to Kirtland around the same time the Mormons arrived in Kirtland. He was a farmer, as well as owned a “well-known tavern on the old Chillicothe road within a stone’s throw of the celebrated Mormon temple.” He died in Painesville. Harriet T. Upton, History of the Western Reserve, vol. 3 (Chicago: Lewis Publishing Co., 1910), 1779. George Frank and his brother jointly bought several pieces of property in and around Kirtland between 1838 and 1848. Their first purchase was a one-acre parcel from Nancy Rigdon (Sidney Rigdon’s mother) on January 18, 1838. Geauga County Records, book 25, 303.
345. Reuben P. Harmon (1814–1906) was born in Licking County, Ohio, and moved with his family to Painesville in 1819 and then to Kirtland in 1822. Harmon was a schoolteacher and later a professor. Paul E. Dornbos, transcriber, Autobiography of Reuben Plum Harmon of Kirtland Lake County Ohio (Painesville, Ohio: Lake County History Center, 2001). Harmon Jr. owned property in Lake County as early as 1838 when he purchased 31 acres from his brother Oliver Harmon on August 14, 1838. Geauga County Records, book 26, 310. He purchased nearly 150 additional acres between 1845 and 1849. Lake County Records, book D, 131 (100 acres); book E, 294 (11 acres); book F, 508 (23 acres); and book G, 415 (10.5 acres).
A “Testimony of Reuben P. Harmon” about Joseph Smith noted: “I was acquainted with Joseph Smith. I never knew anything bad about him. His reputation was good, his honesty never was questioned. I was not a member of any church. I have heard reports about them but I have lived among them here in Kirtland and never saw anything out of the way.” A. H. Parsons, Parsons’ Text Book (Independence, Mo.: Ensign Publishing House, 1902), 54, quoting selections from Public Discussion of the Issues between the Reorganized Church of Jesus Christ of Latter Day Saints and the Church of Christ (Disciples): Held in Kirtland, Ohio, beginning February 12th, and closing March 8th, 1884, between E.L. Kelley of the R.C. of J.C. of Latter Day Saints and Clark Braden, of the Church of Christ (St. Louis: Clark Braden, 1884), 391–92.
346. Appraisal Order, p. 2. Oath dated November 16, 1861. The oath is in accord with Probate Code §140 that provides: “The appraisers shall be sworn by some officer authorized to administer oaths, and a certificate thereof shall be inserted in, or annexed to their return; and they shall afterwards, upon actual view, perform the duties required of them by the order of the court, and make return of their proceedings, in writing to the court.”
347. It was Perkins who calculated that $4.11 was Emma’s dower interest. Only the valuation of the two properties was filled in by the appraisers. It appears that Perkins (possibly along with Newell) determined the fair rental value of the Temple Property that formed the basis for Emma Smith’s dower interest.
348. Captioned by the court as “Order of Appraisal,” November 16, 1861, Lake County Court Records, this pleading appears to have been prepared by William Perkins, Newell’s attorney and partner in this transaction. This conclusion was based on comparing the bills for legal services that Perkins sent to Joseph Smith and this pleading. Perkins left blank the amount of the appraisal for each parcel that appears to have been filled in by one of the appraisers.
349. Probate Code, §141 provided that the “appraisers shall each receive one dollar per day, for services performed by them in the county in which they reside.”
350. Journal Record, February 3, 1862, book D, 214.
351. The Probate Code, §144 provided that the “sale shall be made by public vendue, at the door of the court house, in the county in which the order of sale shall have been made or at such other place as the court may direct.”
352. Notice of Sale, April 18, 1862, Lake County Court Records. A copy of the actual advertisement is attached to this pleading.
353. This was most likely the first courthouse to be built in Painesville after Lake County was formed in 1840. As noted in History of Geauga and Lake Counties, 24: “Some time during the year 1840 the foundation was laid for a court-house in Painesville. The plans for their building were made by George Mygate, architect, afterwards of Milwaukee, Wis. The structure, although commenced soon after the organization of the county, was not completed until sometime in the summer of 1852. The building was erected by Harvey Woodworth, who took it upon a contract so ruinously below that of any of the other bidders, as necessarily to involve him in a heavy loss in carrying out its provisions. This building has been enlarged, four new offices and a capacious fireproof vault constructed in which to store valuable county records, etc.”
354. Holcomb, Events of Personal and Family History, 384.
355. Report of Sale, April 18, 1862, Lake County Court Records.
356. Probate Code, §143, 385.
357. Journal Record, October 29, 1860, book D, 232–33.
358. Report of Sale.
359. There appears to be a mistake here—it should be $106.00, with $6.00 being interest, not $160.00.
360. The additional $6.00 must have been for interest.
361. The math breaks down here. From the calculations noted by Perkins, Perkins had collected $106.00 for the balance on the Temple Property and $156.00 on the 13-Acre Property for a total of $262.00. From that amount, Perkins was to pay Rich $10.00 and Newell to pay Frank $35.00. This left a balance of $217.00, not $221.00.
362. Holcomb, Events of Personal and Family History, 385–86. As a postscript, Perkins noted, “At this place on the original is written in pencil, in my handwriting, the following words and figures, ‘I paid to Holcomb $5.00. The within is a copy of the original made by me this 1st day of August 1877. The original remains in my possession & is for Mr. Holcomb who was administrator of Jose Smith. All the original papers in my hands, except the original settlement, I delivered to Mr. Holcomb. Wm L. Perkins.” Holcomb, Events of Personal and Family History, 386. A similar inclusion of this memorandum from Perkins is found in Holcomb, Red Scrapbook #2, 76½-76¾. However, as previously cited, Holcomb adds, “I do not think I ever received any thing for services as administrator of ‘Joe’ Smith estate. I remember that Mr. Newell [not Mr. Perkins] offered me $5.00 but I declined to receive it as I had done nothing to earn it.” Holcomb, Red Scrapbook #2, 76¾.
363. Probate Code §145 required that the “administrator shall make return of his proceedings, under the order of sale, to the next term of the court after the sale.”
364. Probate Code §145 continued: “and the court, after having carefully examined such return, and being satisfied that the sale has, in all respects, been legally made, shall confirm the sale, and order the executor or administrator to make a deed to the purchaser. The order, confirming the sale, and for a deed, shall be entered by the clerk upon the minutes of the court.”
365. The deed for the sale noted that “a Sale duly made, and reported to, and confirmed by said Court, on the 18th day of April in the year of our Lord one thousand eight hundred and sixty-two.” Deed, Joseph Smith Jr. per Administrator to William L. Perkins, October 24, 1862, Lake County, Deed Records, volume S, 526–27, Lake County Court Records; Record of Real Estate, book D, 81–88, October 29, 1860, Lake County Probate Court Records.
In 1862, the Lake County Court of Common Pleas held court three times a year, commencing on February 11, May 13, and September 30. “Times of Holding Court,” Acts of a General Nature and Local Laws and Joint Resolutions Passed by the Fifty-Fourth General Assembly of the State of Ohio: At Its Second Session (Columbus: Richard Nevins, 1861), 195. If the sale were being conducted by the court of common pleas, Newell and Perkins would have had to wait until May to finalize the sale. However, as the sale was under the jurisdiction of the probate court, Newell and Perkins could file the Report of Sale and get immediate response, for the probate court, by constitution, was “open at all times.” Constitution of the State of Ohio, art. IV, sec. 7.
366. Deed, Joseph Smith Jr. pr Administrator to William L. Perkins, October 24, 1862, Lake County Court Records.
367. Deed, William L. Perkins and wife (Margaretta S.) to Russell Huntley, April 19, 1862, Lake County, Deed Records, volume S, 371, Lake County Court Records.
368. Russell Huntley (1807–1890) was a successful businessman who bought various properties in Kirtland during his affiliation with Zadoc Brooks, who founded a splinter group from the Mormons. In 1858, he financed the unauthorized printing of the Book of Mormon for Brooks. Four thousand copies were printed and are often referred to as the “Brooks Edition” or the “Brooks-Huntley Edition.” When this group failed, the Reorganized Church of Jesus Christ of Latter Day Saints (now the Community of Christ) used this version until it printed its own version in 1874. Shane J. Chism, A Selection of Early Mormon Hymnbooks, 1832–1872 (Tucson, Ariz.: n.p., 2011), 237.
369. Roger Launius wrote the following about Huntley taking care of the Kirtland Temple: “Huntley was delighted with his purchase. The Kirtland Temple held special significance for him because of the religious activities that had taken place there and the opportunities it held for continued worship. He spent over $2,000 to stabilize the exterior of the building, appointed a caretaker, and allowed the Reorganized Church branch and civic organizations to hold activities.” Launius, Joseph Smith III: Pragmatic Prophet, 256. See also “Statements of Joseph Smith,” in Heman C. Smith, ed., Journal of History (Lamoni, Iowa: Board of Publication of the Reorganized Church of Jesus Christ of Latter Day Saints, 1919), 442–43.
370. Quitclaim Deed, Russell Huntley to Lucius Williams, October 15, 1866, Lake County, Deed Records, volume X, 318, Lake County Court Records.
Transferring by quitclaim deed in both of these transfers is worthy of a comment. A quitclaim deed does not include any warranties. Bouvier, Law Dictionary, s.v. “quit claim.” This includes a warranty of clear title. Conveying by quitclaim therefore may be seen as evidence that Perkins knew that the legitimacy of the title he was conveying was questionable.
371. Quitclaim Deed, Lucius Williams to Seth Williams, May 10, 1869, Lake County, Deed Records, book 2, 237, Lake County Court Records.
372. Huntley moved to DeKalb County, Illinois, by the mid-1860s, where he became acquainted with members of the RLDS Church, including Joseph Smith III and Mark Forscutt. He joined the RLDS Church while in Illinois. He moved to California by the 1870s and from there continued his work to build the RLDS Church, at one point lending the RLDS Church $5,000. He left the RLDS Church late in life, aligning himself with another splinter LDS group led by David Whitmer. Launius, “Joseph Smith III and the Kirtland Temple Suit,” 113–15.
373. Joseph Smith III (1832–1914), the eldest surviving son of Joseph and Emma Smith, was sustained as President of the Reorganized Church of Jesus Christ of Latter Day Saints on April 6, 1860. He continued in that position until his death. Launius, Joseph Smith III: Pragmatic Prophet, 115–40.
374. Mark H. Forscutt (1834–1903) was a convert to Mormonism in Godmanchester, England. He migrated to Salt Lake City with his newly married wife in 1860 where he became a secretary to Brigham Young. He left the LDS Church principally over the issue of polygamy. Forscutt became connected with John Morris’s schism from the LDS Church, becoming an apostle under Morris. By 1865, Forscutt had joined the Reorganized Church of Jesus Christ of Latter Day Saints (now Community of Christ) where he became a personal friend of Joseph Smith III. He remained a follower of the RLDS until his death. Eric P. Rogers, “Mark Hill Forscutt: Mormon Missionary, Morrisite Apostle, RLDS Minister,” John Whitmer Association Historical Journal 21 (2001): 61–90.
375. Quitclaim Deed, Russell Huntley to Joseph Smith III and Mark H. Forscutt, February 17, 1873, Lake County, Deed Records, book 5, 67, Lake County Court Records.
376. See appendix C. The Reorganized Church of Jesus Christ of Latter Day Saints’ (RLDS) legal effort to obtain clean title to the Kirtland Temple is beyond the scope of this article. In summary, the RLDS filed suit against various parties who had or may have had an interest in the Kirtland Temple (including Joseph Smith III and Mark Forscutt) in August 1879. This action was dismissed in February 1880. See appendix C for a summary of the events in this litigation. The RLDS would ultimately acquire title to the Kirtland Temple by way of adverse possession.
377. Published as a broadside extra of the Messenger and Advocate, December 1836.
378. Published as “Articles of Agreement,” Messenger and Advocate 3 (January 1837): 441–43.