On October 13, 1730, Mercer obtained title from David Waugh to the
Ballard house and lots on the basis of the "Statute for transforming
uses into possessions." At the same time he acquired the three lots
originally granted to John Waugh, while nine months later he was given
the release of the three lots inherited by George Mason from his
father.[60] Mercer's foothold in Marlborough was now secure.
Following these developments, he "employed the County Surveyor to lay
off the several Lots he had purchased," which led to the discovery of
the previously mentioned disparities and conflicts between the Buckner
survey of 1691 and the missing Gregg survey of 1707. For some reason the
town now lacked feoffees, so Mercer "applied to the County Court of
Stafford on the tenth day of June one thousand seven hundred and
thirty-one and the said Court then appointed Henry Fitzhugh Esquire and
James Markham Gent. Feofees of the said Town." Mercer stated that he
"proposed making great Improvements ... and wanted to take up several
other Lots to build on." The court thereupon ordered John Savage, the
county surveyor, to make a new survey, "having regard to the Buildings
and Improvements then standing"--a significant instruction, intended no
doubt to permit the reconciling of conflicting titles with respect to
what actually was built.[61]
The new survey was laid out July 23, 1731, "in the presence of the said
Feoffees," and drawn with the same plan and numbering as Buckner's,
except that an additional row of lots was applied along the western
border of the town, compressing slightly the former lots as planned by
Buckner and pushing them eastward (fig. 2). This extra row, we have
reason to believe, was added with "regard to the Buildings and
Improvements then standing."
At the time of the survey, the feoffees told Mercer "that he might
proceed in his Buildings and Improvements on any the said Lots not
before granted," promising that they would at any time make him "any
Title they could lawfully pass." A proposal by Fitzhugh to give title to
any lots already purchased or any which Mercer might take up under terms
of the Port Act of 1705 was discouraged by Mercer's lawyer, Mr. Hopkins,
who took the view that, since the three surveys conflicted, the deeds
would not be good. Accordingly, Fitzhugh and Mercer applied for an
"amicable Bill," or suit in chancery, in the General Court, in order "to
have Savage's or any particular Survey established." The request was
shelved, however, and still was unanswered in 1748.
The extra row of lots and the court's instructions to Savage to make his
survey with "Regard to the Buildings and Improvements then Standing"
seem to be correlated. Savage made a significant notation on his survey
plat: "The lots marked 16, 17, 18, 19, 20, & 21 joining to the Creek are
in possession of Mr. John Mercer who claims them under Robinson,
Berryman, Pope & Parry, & under Ballard & under John Waugh dec^{ed}, all
w^{ch} he says have been built on and saved." On the Buckner plat the
lots bearing these numbers comprise a block of six in the southwest
corner of the town, extending up from the creek in two 3-tiered rows
(fig. 2). The plat included the lots near the head of the "gutt" where
the courthouse appears to have stood, as well as the land on which
Structure B (the foundation of Mercer's mansion) was excavated. The lots
appear in the same relationship on Savage's survey, except that the new
row bounds them on the west.
We know that the Robinson-Berryman-Pope-Parry lot was the same lot
originally granted to Robert Alexander in 1691, numbered 19 on
Buckner's plat. It was granted to its later owners according to the
Gregg survey in 1707, and was then described as "being the first Lott
known in the Survey Platt by number 1." From Mercer we have learned
already that Gregg made "his number 1 in the corner at Buckner's 19."
The other five lots were claimed under Ballard and John Waugh. Waugh was
granted one lot in 1691--Buckner's number 20--and acquired two more in
1707. All three appear to have been in the corner block of six lots. In
any case, these six lots equal the number of lots known to have been
granted the above-listed lot holders. Both of Ballard's lots were
granted in 1707. His lot number 19 (Gregg survey), where Mercer first
lived, is described as "bounding Easterly with a lott surveyed for Mr.
John Waugh Westerly with a Narrow street Northerly with a lott not yet
surveyed, Southerly with the first main Street which is parallel with
Potomac Creek." We do not know which of Waugh's lots is meant, nor do we
know Gregg's street plan, except that it was at odds with Buckner's. But
it is probable that Ballard's lot (Gregg's number 19) was the same as
Buckner's number 21, that the crosstown street on Gregg's plat lay to
the south of the lot rather than to the north of it, as on Buckner's
plat, and that one of Waugh's lots lay to the east of it.[62]
Assuming that the two acres for the courthouse were located near the
head of the "gutt" and that Ballard's lot 19 was approximately the same
as Buckner's 21, it is apparent that Ballard's lot must have overlapped
the courthouse lots in the confusion between the two surveys. Since
Mercer was living on Ballard's lot, he probably infringed on the
courthouse property. Even though the courthouse had been burned and
abandoned, the two acres assigned to it were required to revert to the
original owner, as provided in the Act of 1667, concerning church and
courthouse lands. In this case, the courthouse land, having been
"deserted," had reverted to the heir of Giles Brent.
Mercer's embarrassment at this state of affairs must have been great.
However, the addition by Savage of a whole new row of lots along the
westerly border of the town created new acreage, sufficient both to
reconcile the conflict and to provide compensatory land to satisfy the
Brents. Unfortunately, the Savage survey, as we have noted, was not made
official, and Mercer was forced to continue his questionable occupancy
of properties whose titles were in doubt.
[Illustration: Figure 5.--KING WILLIAM COURTHOUSE, about 1725. Mercer
often pleaded cases here. (From a Civil War period negative.) (_Courtesy
of Historic American Buildings Survey, Library of Congress._)]
What is most significant to us in all this is the inference that the
courthouse, the Ballard house which Mercer occupied, and the Structure B
foundation were all in close proximity.