Planet Money - How Jacob Loud's Land Was Lost

Episode Date: April 7, 2021

Today's show: the arcane laws that have cost Black landowners their property, and the lawyer who is trying to fix those laws. | Subscribe to our weekly newsletter here.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Planet Money from NPR. I was born in 1972. I am the ninth child of 11. A huge family. Fred Wardlaw grew up in northwest Louisiana, in a tiny town called Castor. About a mile from his parents' house was a big parcel of land that belonged to his extended family. A lot of his family had houses there.

It has rivers, little creeks. I grew up picking corn, picking peas, picking butter beans. It was a community, a very vibrant community. Sometimes he'd walk from house to house to visit his relatives. Sometimes he'd go out into the woods to explore with his brothers and sisters. My siblings and I could walk to a creek and walk down the creek and fish from this land. Wardlaw says it was a pretty happy childhood. We was poor, but we just didn't know we was poor. But after high school, he was ready for something new.

Growing up in rural Louisiana as a young Black man, and you're not open to the full world. You're kind of left out of what's going on around you. So Fred joined the Army for a few years, lived in Texas, Korea, California, and he went to college. Eventually, he settled near Washington, D.C. and got a job as a systems analyst for a publishing company. His hometown of Castor, Louisiana, seemed a long way away until the day his mother called him with some bad news. She told us that we could possibly lose the land. She meant the family's land, where Fred Wardlaw's grandparents had had

their farms, where he had spent his childhood fishing and exploring the woods. That land, she said, was at risk. It could be forced to be going to a shelf sale. If you go into a shelf sale, it's like an auction. Anybody can come buy it. It didn't really make sense. There was no mortgage to pay off. There were no taxes that were owed. But his mother said none of that mattered. My family, my mother, her siblings, some more cousins on our side. Majority of the cousins on our side did not want to sell the land.

So who said you had to sell it then? The court. The court. The court. Hello and welcome to Planet Money. I'm Keith Romer. And I'm Jacob Goldstein. Fred Wardlaw and his family didn't know it yet, but they had gotten caught up in a system of centuries-old laws that have long been used to take land from families, especially from Black families. Today on the show, the lawyer who has spent his career trying to change those laws.

And Fred Wardlaw's fight to save his family's land. Fred Wardlaw is very interested in his family history. And in that history is the answer to why his family's land was about to be auctioned off. His family first came to northwest Louisiana in the 19th century. They were not born in Louisiana. They were brought. Wardlaw's great, great, great grandfather was a man named Jacob Loud. He was born a slave in Virginia,

but he was transported with the families of Scottish Methodist settlers, and that's how he ended up here. Wardlaw thinks that that was probably sometime in the mid-1850s. After the Civil War came and went, Jacob Loud and his wife Member were freed, and they began to make a life for themselves as farmers. Jacob and Member had five children, and in 1906, Jacob Loud established a legacy for all his descendants who would come after him. Jacob Loud acquired 160 acres from a land grant by the government. It was the Homestead Act. A former slave and now a landowner.

Jacob Loud did not leave a will. So when he died, his land passed to his wife and children. Then his children had children. Then those children had children, and so on. So that's one, two, three, four, what, five generations? When Fred Wardlaw was growing up, the living members of those five generations owned the land collectively. The legal term for this kind of ownership is heirs' property. Heir, like the people who get your stuff when you die.

We didn't really understand the full legal definition of what heir property was. legal definition of what heir property was. We just understood it to be that this land was for your family and it's for everybody in the family. The numbers are a little hazy, but something like half of Black-owned land in the United States is held this way. It's held as heir's property. And so the way the law around heirs' property works is really important. Jacob Loud's five children each had a one-fifth stake in that family land. But it wasn't like one of the kids owned the northeast chunk and another one had the northwest chunk. They all owned all of the land together. And so if one of Jacob Loud's children had wanted to sell his or her one-fifth ownership, it was not like there was some specific chunk of the land that they could sell.

What they could sell was their one-fifth ownership stake in the whole thing, in the whole piece of land. Or, and this is the key part, if they didn't think they could get a good price that way, Or, and this is the key part, if they didn't think they could get a good price that way, they could go to a court and bring a particular kind of lawsuit called a partition action. Basically, ask the judge to find a way to either divide up the land fairly or to just sell all of it and divide up the proceeds according to how big a share each family member owned. And that is what was happening to Fred Wardlaw's family land when he got that call from his mom back in 1999. Someone had brought a partition action that was putting the family's

ownership of the land in jeopardy. But according to the legal papers, the person who had brought that partition action in court was not part of the family. He wasn't related to Jacob Loud at all. He was a white man named W.G. Dowden. We got this information kind of out of the family. He wasn't related to Jacob Loud at all. He was a white man named W.G. Dowden. We got this information kind of out of the blue. We just wasn't prepared for it. Fred Wardlaw wanted to understand how this W.G. Dowden came to own a share in his family land. So he flew home to Louisiana and he went to the Bienville Parish Courthouse to try to find out. In the clerk's office, he found shelf after shelf of old books that tracked all the land in the parish all the way back to before even Jacob Loud acquired his 160 acres. You go to this book for the parcel number of what his property is.

It gives you all the past owners of this property. You get all the information, all the transactions that was connected to that property. And there, in one of those musty old books, Fred Wardlaw found his answer. There was a deed of sale from June 30th, 1980. Ward Law's great-uncle John had sold his 125th share of ownership to a pair of white men for $100. A couple months later, those men had turned around and sold that same interest to W.G. Dowden for $1,000. The book didn't record why it had happened. Fred Wardlaw would later hear an old family story about how his great-uncle John had taken out a loan to buy some trucks,

using his share of the loan as collateral, and then giving up that share when he couldn't pay the loan back. But it didn't really matter why. It only mattered that his great-uncle John had sold his share. According to the book at the parish clerk, that share had changed hands one last time in 1992, this time to a timber company called Timberland Services. Fred Wardlaw's family hired a lawyer and went before a judge. They tried to propose a solution that would be fair to everyone. After all, Wardlaw's great-uncle John had only owned 4% of the land. Whatever his interest was,

maybe he could just lose his part. Maybe we could just extract his part and salvage the other. This is a reasonable legal argument. The law says the court can physically divide up the land to resolve a lawsuit like this. The judge could have broken up the land into pieces that corresponded to everyone's share, including a little chunk of the land for the timber company. But if part of the land has houses on it and part of it is swamp and part of it is timber and part of it is farmland, how do you find a piece of land worth exactly 4% of the total? Mostly, judges do not want to insert themselves into such a messy process. The judge in Fred Wardlaw's case said, I can't divide up the land. The courts wouldn't let us do that. They made us hold all of it together. What the judge said was sell all of the land, not 4% of it,

all of it, and split the proceeds among everybody who jointly owns the land. And so after the judge made that ruling, the sheriff put a notice in the local paper, the Bienville Democrat, announcing that an auction to sell the land would take place in a month's time at the parish courthouse. I was shocked. Personally, I was just shocked. Coming up after the break, the lawyer who has spent decades trying to change the law around Ayers' property. And what happened with the Wardlaw's family was fighting to keep their land, a young black lawyer named Thomas Mitchell started investigating the laws around Ayers' property

and the problems Ayers' property owners were facing. It was a little slow going at first. The whole phenomenon of how these families were losing their property and how the law actually worked was literally not in a single property law casebook or treatise. And yet he found that the amount of land lost by black families in the 20th century was immense. Black land ownership in America fell by about 60% between 1910 and 2000. People were run off their land by violence or frozen out by banks and government programs

until their properties were foreclosed on or forced off their land by auctions like the one that was coming for Fred Wardlaw's family land. But despite all this, despite the fact that so much land owned by black people was held as heirs' property, there was very little legal scholarship about the issue. So Mitchell realized that if he wanted better answers, he needed to stop looking in, you know, law libraries and start reaching out to people who had firsthand experience of the system. The cases that we all learned in law school and for generations of

law students were totally unrepresentative of the broader phenomenon. And the more Mitchell talked to people like Fred Wardlaw, people who owned land in this way, the more problems he heard about Ayers property. The law made it really hard for Ayers property owners to do the things that landowners do to build wealth, to make money by cutting down trees to sell timber or to use land as collateral for a loan. A lot of times, families could only do those things if every single fractional owner agreed. And a lot of those fractional owners were really hard to find. You often have distant relatives who are now living in Chicago or New York or Detroit or Los Angeles

who had no idea that they are actually a part owner of this property back in Georgia. And then there was the problem that Fred Wardlaw's family had run into in Louisiana. These forced sales of Ayers' property land were happening all over the country. Mitchell says there was a perverse economic logic at work for African-American families. If you were a Black farmer in 1910, you were mostly only able to buy the farmland that no one else wanted. But as the country grew, a lot of that mediocre farmland started to become more valuable. And so that serves as the impetus for these speculators and developers to try to do anything they can to get their hands on the property and to force the sale. At some point, property developers realized that there

was this flaw in the heirs' property system, this incredible way for them to get these newly valuable properties for pennies on the dollar. Typically what they do is they pick the weak link and then they often target the out-of-state, very distant relative who's had no connection to the land. Developer calls up that weak link and says, I'll give you a1,000 for this tiny share of land in some faraway state that maybe you didn't even know you owned. And all they have to do is pick off one relative. And that one relative doesn't have to own a significant percentage. So if I have one 25th share of this ownership of this land, I can go to a judge and say, I want to cash out.

And the judge will say, sure, we have to sell the whole property. Yeah, you could have a 125th interest. You could have a 100th interest. You could have a one one millionth interest. You have the right to ask for that for sale. If you're a developer and you get to the for sale, you're pretty much home free. First of all, it's an auction on the courthouse steps that's only been advertised in the legal classifieds of some local

paper, so no one even knows about it. Second, even if they did, the rules say that no one is allowed to go inspect the land ahead of time, so any prospective buyer would have to buy it sight unseen. And third, maybe the most important part, anyone who wants to buy the property has to pay 100% in cash. So in most cases, even if the family whose land is being sold wants to bid on their own property, they're not going to be able to get the money together to outbid the developer. If you wanted to set up a system where property developers could buy families' land from them for next to nothing, it would be hard to set up a better system for doing it. By 2001, Thomas Mitchell had become a law professor, and he wrote this big paper about how messed up the laws were around Ayers' property, that legal arrangement like Fred Wardlaw's family had with their land.

Mitchell's paper also had some ideas for how to fix those laws, but he was not optimistic. You know, my initial thinking was that it was more likely than not that any reforms would not happen in my lifetime. But in a classic case of right place, right time, some newspaper journalists at the Associated Press wrote a big expose on how heirs' property owners were having their land taken away from them. And when they needed an expert to quote, they went to the guy who wrote the big paper about it, Thomas Mitchell. That press attention got things going. The American Bar Association got in touch with Mitchell.

So did this other big legal organization called the Uniform Law Commission. And they asked him and a few other lawyers who were working on this, what would a better version of the law around heirs' property look like? So Mitchell and his team got to work. They decided their dream version of the law should have three basic parts. Part one, if someone wants to sell their share of heirs' property instead of immediately going to an auction, what if courts first let the other shareholders have the option to buy out that person who wants to sell? What if Fred Wardlaw's family in Louisiana only had to buy out the timber company's tiny share of the land?

Wouldn't that make it way easier for them to keep the land? Part two, Mitchell and the others thought property is more than just money. And the law should reflect that. So courts in these cases should consider, you know, some of these non-monetary factors. The value of a family's history on the land or the value of not having your home sold out from under you. Is it worth it to let someone cash out their share if someone else is going to end up homeless? Let someone cash out their share if someone else is going to end up homeless. And then, part three, if the judge still decides that the best thing to do is to sell the land,

don't make it a fire sale on the courthouse steps. Appoint a real estate broker to sell the land on the open market, just like any other property. At least let the family walk away with a good price for their land. Law professors and other people in the legal community looked at this proposed law and they were impressed. They thought it was a good idea, but they didn't think that old law was actually going to change. Not because it was just. A lot of people conceded that it was unjust, but they said the law exists the way it exists because African-Americans, heirs, property owners fundamentally lack economic and political power. And the law is going to serve the interests of those who are more powerful, including those who want to take the land from these African-Americans.

Still, every few months, he would talk strategy with the other members of his team about how they could get this law on the books somewhere. We were very intentional about thinking of where did we think we had the best chance and then trying to make a pitch to important stakeholders, including those in the legislature in those states. And eventually, slowly, Mitchell started to succeed. In 2011, the legal language that he and his team wrote up to fix the heirs' property system, it actually became law in the state of Nevada. In 2012, Georgia passed a law based on Mitchell's work.

We, you know, we were able to, in the, you know, something like the first five years, we were able to get like one state a year. After Georgia came Montana, Alabama, Connecticut. And as of today, Mitchell's version of the law has been adopted in 17 states all around the country. Eight of the 17 states are southern states. states are southern states. And I think you're talking about the group of states where there had been three to four decades of failure. And it's actually on this issue, the southern states are leading the way, which I, you know, find remarkable. But there are still 33 states that have not passed Mitchell's version of the law, including, notably, Louisiana, the state where Fred Wardlaw and his family were told by a judge that the land that had been in their family for almost 100 years

had to be sold. Louisiana has changed the law some since then. If you own less than a 20% share in Heirs' property, you can no longer get a judge to force the sale of the entire property. But all those other features of Thomas Mitchell's version of the law, they are not on the books in Louisiana. If you open up the legal classified section of a local paper, you will still see announcements for sheriff sales from partition actions. Like the one in the Bienville Democrat that announced the sale of Fred Wardlaw's family land. When the day of the sale arrived, the property was put up for auction at the parish courthouse,

and no one in Fred Wardlaw's family had enough money to put up a bid. The timber company ended up buying the land. Some of the family members got, they got the proceeds from what the land sold for. It was divided up, checks were sent out. But at the same time, you lost it. You lost everything. They tore down my grandfather's house.

The new people that bought it out, they didn't want no dwelling, so they tore it down. Fred Wardlaw still remembers the look on his aunt's faces after the property was sold. Their dad had told them that this was going to be, property was going to be left in the family. And we lost it. It was about maintaining what you had, maintaining what Jacob had acquired for us. And, you know, here we is, done lost it. You know, less than 100 years later.

And it hurt. It hurt. It hurt a lot of us. Fred Wardlaw moved back to Louisiana a couple years ago to take care of his parents. And he sees a lot more of his family now. I started organizing and talking with people and bringing families together and bringing my siblings together first and then bringing my uncles and aunts and some cousins together. He teaches them about the family's history, about how the land came down from Jacob Loud, who got a grant of 160 acres from the U.S. government in 1906, about how the family lost that land.

And he teaches them about how to protect themselves from the legal system that let that happen. I wanted to be able to educate them on what to do to fight back and to organize and start getting wheels and start doing insurance and start organizing your family. Tell your family about your history. Tell your families about your land. Because it means a lot. Fred Wardlaw is also thinking about trying to buy a little land for himself to be able to leave something behind for the generations that come after him. Is there some part of the legal system you think we should be covering?

Let us know. You can email us at planetmoney at npr.org. We are also on Twitter, Facebook, Instagram, and TikTok. This week on TikTok, there was this great wisdom of crowds experiment where the world tried to guess the weight of one of our dogs, and collectively, they, you, nailed it. Got within a few pounds. Additional reporting for this show was done by Dan Germa,

who also produced the show. It was mastered by Gilly Moon. Our supervising producer is Alex Goldmark, and our editor is Bryant Erstadt. Special thanks today to Adrian Wheeler at Louisiana Appleseed and Professor John Lovett from Loyola New Orleans Law School. I'm Keith Romer. And I'm Jacob Goldstein.

This is NPR. Thanks for listening. A special thanks to our funder, the Alfred P. Sloan Foundation, for helping to support this podcast. And a special thanks to our funder, the Alfred P. Sloan Foundation, for helping to support this podcast.