Huidekoper's Lessee v. Douglass

DETERMINED CASES IN THIS THE STATES. OF UNITED SUPREME COURT TERM, 1805. FEBRUARY Huidеkoper’s Lessee (a) Land Company. titles Land Pennsylvania. —Holland April &e., gran- Pennsylvania, 1792, vacant of 3d for the sale act of Under Allegheny, rivers Ohio and warrant, land, lying of a tract of north and west of the tee, by States, prevent- creek, United of arms of enemies Oonewango force space from the settling improving of two date the said ed from time, persisted settlement and im- in his endeavors to make such during that as is in the ninth section actual settlement described provement, is excused fee-simple. act, warrant vests from the Circuit Court case certified This of that court of the judges of Pennsylvania, opinions which the district opposed. “ Holland the title of the Company The action was ejectment try west the' tract of land north Pennsylvania, lying large to a very creek, purchased Conewango state,, Ohio Allegheny, rivers Dall. Laws of the 3d of April 209), act assembly (3 under follows, :viz is as act lands this commonwealth. the sale of the vacant within An act for commonwealth, included lands within Whereas, the most valuable Indians, from the native year the purchase within *for the use divers pur- and appropriated taken located up, *- those re- established heretofore chasers, at prices unsettled, situation, ma.in cannot be inferior quality unsold and being other lands whereas, the fixed law for And prices : same prices sold Washington Jus J., (a) Present, Ch. Cushing, Johnson, Paterson, Marshall, tices. 3 Cranch —1 v. Douglass. to the commonwealth are belonging found to be so as to high discourage actual settlers from the same : improving purchasing That 1. from and after the of this of all the passing price § vacant lands limits of the made of the Indians purchase 1768, and all year such lands as have preceding purchases, excepting always settled to the previously upon shall be reduced sum of improved, for

fifty ; hundred acres shillings every and the of vacant lands within price the limits of the Indians, made of the and purchase year lying east of river and creek, shall be reduced to the sum of Allegheny Conewango for acres pounds ; hundred thereof and the same shall and every may to granted any same, for the at the afore- person persons applying price said, in the manner and form accustomed under the heretofore laws enacted and now force. 2. That after the of this all other lands passing and belong- § to this ing commonwealth, thereof, and and within jurisdiction laying north and creek, west of the rivers Ohio and and ex- Allegheny, Conewango such been, thereof heretofore cepting be, as have or hereafter shall parts ap- to propriated use, or charitable shall be and are offered for any public hereby sale to cultivate, persons same, who will and settle the or cause the improve same to be cultivated, settled, and at and for the of seven improved price ten pounds, thereof, for hundred acres shillings, every with allowance of six centum per located, for roads and to be and secured highways, surveyed to such in the manner hereinafter purchasers mentioned. 3. That :|:§ settled upon application any who person may *31J and or is improved, desirous settle and improve, plantation, within the aforesaid, to the land-office, limits secretary applica tion shall contain a for, of the lands there shall particular description applied to him a granted limits, warrant for of land the said any quantity acres, four hundred exceeding cause requiring surveyor-general same to be for use of the his ever, heirs and surveyed grantee, assigns and make return thereof to the office, within the term of surveyor-general’s six months next and all following, grantee paying purchase-money, the usual fees of the land-office. 4. That shall, surveyor-general approbation gover- § nor, divide the sale, lands thus offered for into and convenient proper dis- tricts, in such manner as he think so that the boundaries of may expedient, each district, either artificial, known, natural or one may appoint district, each shall deputy-surveyor who bond and give as is security, with other customary commonwealth, and shall re- deputy-surveyors side within, or as near ; district possible, such respective .as every shall, next after his deputy-surveyor within sixty days appointment, certify such surveyor-general, where county, township place, deputy- shall surveyor his office for the keep warrants, in open, purpose receiving order that all aforesaid, for lands as persons who in- may apply may duly formed thereof ; and who shall receive such every war- deputy-surveyor any rant, shall make fair clear in a book, entries thereof to be provided by him for that therein the name of the purpose, therein distinguishing mentioned, the land, thereof, date quantity day same, shall receive the which book shall be at all sea- deputy-surveyor open, sonable hours, shall be entitled to applicant, any every copies UNITED STATES. OF THE such, as therein,

entries certified signed deputy-surveyor, of a therefor. dollar the party paying one-quarter at the reasonable shall, request That the 5. deputy-surveyor p*. L *§ such war- respective grantees, cost proper charges described, in such the lands warrants named, rants survey proceed warrants be, respective priorities nearly may according tract not, virtue survey any shall provided, to the date of and improved, have been settled actually prior district, except (cid:127)the warrant with deputy-surveyor of such entry improvement; having perfected such settlement owner of book, in a enter same be kept by deputy-sur surveys, book shall remain ; and the same called the survey-book veyor, who shall demand office, liable to be whatsoever inspected by any person search and same, of eleven see the the payment pence to be made out cause such survey copies deputy-surveyor of a dollar one-quarter and delivered to any person, upon payment for each copy. he shall not go That in any survey by any deputy-surveyor, 6. § out same, and that of his district to perform every survey proper distriсt, shall be and of non void proper by any deputy-surveyor, n effect. and his hereby severally And the surveyor-general deputies, the full or cause to be amount and to survey, surveyed, directed enjoined ofland contained n samecan be n contain if tract, in in entire warrant, and mentioned one any shall form, manner and as that such tract

found, in such lake, more than river or one-half in front on any navigable in tract, and to conform the lines of every survey, of such or depth length thereof, or as circumstances to form the nearly such manner as figure plot shall than not be twice admit, length to an whose oblong, greater such should be found to contain ; thereof and case any survey breadth is mentioned in the on which shall of land than warrant quantity greater the number of not more than one-tenth of made, that such excess be be so warrant, besides the usual allowance for roads and in such mentioned acres nevertheless, shall, be *admitted under the return thereof highways, [*5 made, such return be warrant, the party procuring provided, land-office, or of receiver-general price to the shall forthwith pay land, at he for or the same rate at which paid such excess overplus value of mentioned warrant. the land act, this of virtue appointed That deputy-surveyor, 7. every § and return into in the next make of year, the month shall, February within he shall have every survey plots officeof surveyor-general, draft, in one warrant, general connected together of any made pursuance and dis- other, to each courses be contiguous far as they may contained in each survey, land line, the quantity of each tances succeed- and every was surveyed the same name of the for whom person made in year pre- return of surveys shall make like he year, ing ceding. shall, district upon That proper 8. deputy-surveyor § and an actual settlement improve- has made any person application and Ohio and the rivers Allegheny and lands, north west ment on lying fees, and survey creek, legal and such paying Oonewango such con- mark out the lines tract of land to person may, such act, of this become entitled virtue of provisions forming and that he shall not more than settlement provided, survey improvement: such shall, hundred for and con- survey, four acres such person, other act form himself to all the this prescribed. regulations by That no or or made 9. warrant be issued survey, pursuance § act, this for lands north of the rivers Ohio and west Allegheny lying shall or to lands therein men creek, title in vest Conewango any tioned, made, has, unless the to the of such or date prior caused next made, shall, or space same, thereon, date of the or make, made, cause to be acres, at least acres for hundred every clearing, fencing cultivating, contained in one habitation of thereon survey, erecting messuage man, thereon, or for the reside ^residing, causing family J same, next his first he- space following settling she or shall so default such actual settlement and. live and long commonwealth, this to issue- lаwful and for lands, thereof, new to other warrants actual settlers the said or any part warrants, actual settlements and residence- reciting original thereof, not been made in so often be- as defaults shall pursuance aforesaid, for the time and in the manner which new grants under and to all and contained in this act: subject every regulations nevertheless, Provided settler, such actual or always, any- antee, in gr original warrant, shall, by arms succeeding force of enemies from, making such beor driven and shall in his therefrom, endeavors to make- then, actual settlement as heirs aforesaid, case, either and his shall be entitled to have hold said the same manner as if the actual settlement had continued. 10. That the lands settled and improved actually according pro- § visions of come,, descend whosesoever possession they may shall be and remain liable of the considera- chargeable payment tion or aforesaid, acres, at the rate and. hundred purchase-money the thereon, interest the ; from dates of such and if accruing improvements actual settler, death, such aforesaid, hindered as or the enemies being the States, of shall for a for the neglect apply space, of ten time act, the of this it shall and be- passing may lawful to and for this lands, the commonwealth same or grant any thereof, other, warrants, defaults; such reciting grantees,, act, -with of this hold complying same, have, shall regulations enjoy them, ; heirs and but no in. warrant shall issued assigns this act, of until pursuance shall to the- purchase-money paid of the land-office. receiver-general , 11. That when caveat is determined the *board any of prop § **-. in manner erty, commonwealth, heretofore used in this patent, shall, nevertheless, be months, for the term of six stayed time, within which party is, whom determination of against the board enter his suit ; at common but not afterwards de- whose favor the party

, termination board shall deemed and taken to be in possession,, all title, intents and other purposes trying although party THE STATES. OF UNITED nevertheless, shall, should be in actual possession, which possession, supposed afore of six months have no end of term effect the title at the which upon said, issue, to the determination entered, no suit is according patent ofthe a certificate of the board, prothonotary upon applicant producing entered, a commenced, or if a suit is of the that no suit is proper county, form, to suit, issue, in common shall, at the determination patent cases, ; and in both patent the title is found whom lawby party all lands, parties be and a full and title to

.shall remain perfect infants, suit; nevertheless, And to the said or saving, caveat privies femes mentes, and under disabili covert, sea, non others compotes persons beyond are disabilities ties, their months after such until twelve respective rights, removed. for the collected, or levied, That no direct taxes shall be assessed 12. § of the lands or tenements commonwealth, lying use of this or from any upon Indians, 1768, or the made of the north or year west purchase full or term of ten estate found personal thereupon, space this act. and after passing for the use of land be reserved 13. That tracts following § Erie, Lake Isle, formed commonwealth, that is to at Presqu’ say, harbor, and a tract eight forms the extending island or which peninsula breadth, so as to include lake, and three miles miles the shore of the along resolution of the of a general assembly, the tract virtue surveyed by already Isle, said at the mouth Presqu’ and the whole of harbor formed by Erie, *Lake into the creek, along of Harbor which empties pg*(cid:127) lake, creeek, thousand acres. on both sides of said shore Erie, on Lake all the purchased 14. That lands within triangle § declared deemed, hereby shall be taken (cid:127)the United be, (cid:127)to the limits of the county Allegheny. and holders to and for the holder That it shall be lawful 15. and may § warrants, heretofore issued unsatisfied agreeably -of warrant any “ an to alter and amend an act of act, entitled act to the section of the 7th and dis- office, the land an act for granting entitled opening assembly, state,” on the 21st this passed day lands within the unappropriated posing of land for to locate the December, quantity year district and were granted, unsatisfied warrants was warrant this land within commonwealth provided, and unappropriated vacant the same shall be under regu- of such unsatisfied warrants or owners owner taken for lands restrictions, as other owners warrants lying lations and creek, are made sub- river and Conewango north and west Allegheny other act or acts of the act, the said recited general this ject by thereof notwithstanding. contrary anywise assembly, of the court below judges opinions points follows, certified to be as viz : were opposed, Whether, under the act of the legislature Pennsylvania, passed 1. act for the sale of the 1792, *entitled vacant 3d day April, pg *- of a commonwealth,” the tract warrant grantee, by lands within Ohio and and Cone- and of the rivers Allegheny of land north west lying States, arms of the enemies of the United creek, who, force of wango land, the said and from from and settling improving residing (cid:127)prevented Huidokoper 1793, of thereon from 10th the date -warrant, of the said day April until 1796, of who, 1st the said day January during period, persisted his to make endeavors such settlement and residence, is excused from making, of the 9th section enacting clause of said law a title in the vest said ? prescribes, grantee 2d. for a Whether tract of land north warrant of and west lying creek, rivers Ohio and and Allegheny Conewango 1793, granted year under and act of virtue of the of Pennsylvania, entitled “ an act for sale of the vacant lands within commonwealth,” ato force of who, of arms the enemies of the States, United was pre- vented said land, from thereon settling improving residing from the date the said until 1st warrant but. day January the said in his to make persisted endeavors such settle- during period, residence, ment and and if any, title, vests what in or to the any, land, said shall, unless the after ceases, commence, said the said grantee prevention thereafter, clear, within the two fence at space cultivate least years two acres for hundred acres contained his said erect thereon survey, man, reside, habitation or cause messuage reside family thereon, of five next first space following same,, settling the said in full life ? grantee being yet aforesaid, 3d. Whether a such a warrant who has failed grantee to- make such clause of the 9th settlement as said section enacting requires, and who is not within the benefit of the proviso, has forfeited his thereby *, land, title the said until the commonwealth *taken right has J forfeiture, so as to said the said advantage prevent fi’om land, of said recovering possession ejectment person, who, at ceased, time after from the time the two at any prevention settled and has period, improved said ever subsequent since been in the same possession

Dallas, for contended for three the plaintiff, general propositions. 1. That a warrantee under a thereby war- person claiming (meaning rant from the who has been force of arms of commonwealth) prevented, by enemies improving, settling residing- from, on the land, but has so, his endeavors do persisted during released, date of his warrant, is forever and totally operation from the proviso, settlement obligation making improvement, and residence described in clause 9th section enacting law. excused, 2. If not for under ever and circumstances,, totally specified heirs, the warrant and his a title yet vests such warrantee to the land under Provided, one of three and for a 1st. reasonable aspects: time after the period he his endeavors accom- prevention, persists endeavors, plish residence, settlement and improvement, although should not be successful: 2d. Provided accomplishes within residence improvement, years, hostilities ceased Provided he has prevention by : 3d. the- accomplished settlement and before time the common- improvement, wealth has taken of the forfeiture. advantage title

3. inceptive gives warrantee right possession, OF THE UNITED STATES. Douglass. v.

Huidekoper commonwealth, an act of the taking can be defeated by advantage the terms of the for grant. forfeiture non-compliance 1792, act of it to to the will be take I. In order understand necessary the at that the situation of state *Pennsylvania period. view of [*n existed her embarrassed, Her and an Indian war on finances were Hence, view, had two great protection frontiers. she objects to her frontiers, those of wealth To treasury. accomplish and the accession firm, to on the frontiers a first, no so sure as establish means were hardy their to and and bound dearest interests watch re- vigilant population, second, And to attain the no incursions of Indians. pel predatory the sale of the vacant lands. means as obviously themselves presented at the time the act passed, when yet nego- war was Although raging, The and tiations was pending, peace expected. general provisions wеre therefore, residence, relate to settlement and act, those which especially also care are a state of while took predicated upon peace, for state of war. provide The extent of is the "With- principal subject litigation. provision contract, words, out to the but law as what are resorting considering and ascribed to the motives ideas which may reasonably parties to the 1. The settlement might 1st. As state. prevented by one, means in the For the ; calamity, grantee. public negligence other, for It the state should answer 2. was just grantee. him for the same from who should be unreasonable, the state to require not from him who settle- prevented as should prevented, time, diminishes, does ment. A mere but not obviate enlargement on The man who has does both objection. put equal footing. and is still to do just obtain toiling spent years fighting over, has at his fire-side till as much the man war home'by who stayed The credit for toil former and then his warrant. purchases to the contrary spirit This construction is evidently wounds.. adventurers, exer- who *gain hardy join which was [*1S and of to subdue the tions to those of the state state, all for such exertions. The motive Indians for totally destroys and, doubt, meant to war warran- therefore, say, might say, settle, tee, that a endeavor during period prescribed, persistence man settlement. That has actu- in lieu of actual who shall be accepted residence, in time and he peace, the settlement ally accomplished reside to settle and his endeavors stipu- shall have who persisted has been war, ene- time, a state prevented lated meritori- equally his settlement from accomplishing my same ous, and shall footing. put he if he war, Would purchase, during As to 2d. warrantee. time, he the limited although persists during liable forfeit his warrant if, at the were go nothing, dangers all his expenses if he had remained war, be in the same situation as end home? and im- then, called for state, money, population situation a sale of subject The means were provement. of the act are The words calamity. spirit public title for the sale of vacant lands. The ideas. The to these conformable states, that the at which have been heretofore held preamble prices found so actual settlers from high discourage purchasing The second and third sections contain the offer of the lands improving. sale, and the ninth describes terms. overture, On this and individuals became companies purchasers. Among rest, 1793, the Holland April Company, August purchased ¡,,... each, which, 1162 tracts of 400 acres losses *and upon re-surveys, -1 settlers, tracts, bounties to actual are x-educedto 776 which have cost $222,071.10 purchase-money, (up year company 1802) $202,000 settle, and actual endeavors to expenses, impi-ovemcnts. also same amount. conse Population Company expended nearly was, the a bank established, that was was quence public treasury supplied furnishes which revenues whole adequate expenses govern ment, so that no taxes have been since imposed; industry improve stimulated, and the state has ments have been advanced in wealth rapidly The of the Holland prosperity. persistence prevention company are admitted. in 1795, The made the Indians is considered the treaty epoch the and the mentioned the 9th which two five section begin distance, to run. But there still further was prevention by by season ratified in the intruders treaty winter), by (for (who pushing lands, under warrants were forfeited pretence want by of settlement the construction within two of the act by years), given How, then, the board are the terms of the contract to by px’operty. Not are inconclusive and the words (cid:127)expounded? they by (for repugnant), section, the 3d but the nature of the transaction. By is by fee-simple a condition but the 9th section annexes The granted; precedent. warrant “ unless,” &e. shall not vest title transaction, however, title, The nature of the and an gives possessory least, for the and the five else the usufructuary property, years, war- rantee could not and make a settlement. It is of in the go always spoken devised, sold, act descend, as a be taken in execution, grant. &e. section, the 9th can is divested default. The By given what by remain in the until whole estate does not grantor, con- performance dition. mentioned, and residence for the time *But the settlement is not a -* There are sine an absolute title. cases qua non vest 9th absolute, section, in the title becomes residence shall although which not “ are, of the act x-esidethereon have been words completed. same, next his first if he shall of five following settling space warrantee, die, live.” If the be having begun long is So, his title if he complete. fore the five years, puts expiration x-eside, term, dies before end of the on the land to family residence before the title expiration years, its is family quits shall, force of So, if an actual settler arms the enemies absolute. by “ from his settlement. And so the United be driven we (as say), “be an shall,” force, like prevented set make such settlement,” endeavors to tlement, and shall persist “ same, the time allowed making lands, to have and to hold said the same heirs shall be entitled

and his OF THE STATES. UNITED each and continued.” In had been manner as the actual settlement meant If the anything released. cases, legislature (cid:127)of these the condition is here ideas, not less, express which wanting words were an them. opportunity using “ If shall are any grantee important. words particular “ and shall and failure : persist,” an this implies attempt prevented:” ;” still success : in his endeavors holding up still want implying “ make,” not, make, until he not not accomplished; idea thing make, a continued in his endeavors make, implying persist (persist hold, have and to be entitled to Shall attempt, performance. if, Here the necessarily imply manner as words the same if.” if the of the section gives done. first part itself is not thing case, done, if it be it, in a certain also done, but the proviso gives thing contend that per- if it had been done. manner as They in the same make the continue, lеgisla- until object accomplished, sistence must until *the settlement : this absurd language ture speak manner as if the set- land in the same have the made, and you much more ra- make them made. But we speak tlement had been from making enemy If tionally. you have the endeavors two years, you but persist your take en- had been made. We will your if the settlement manner as same n deavors cases, in all and residence If were necessary, for success.. theproviso ex- meant, If the proviso, only is useless. in their for there unfortunate time, language, have been very tend and it is contradicted idea, indicates such is no expression reserve section, right commonwealth preceding time, and defaults shall be as often as warrants grant new for act, and the but two No time is manner aforesaid. expressed There how ? time is to be say, long If the who enlarged, five years. a time. is reasonable a what for by jury question, .is no provision trying settlement, An actual within but cases. The act two contemplates God, or of the time, the act public time, during prevention, The same reason that absolute. cases, the title In both enemy. releasesthe warrantee who more warrantee dies, pre- strongly applies on the same them both footing. and the 10th section puts vented by enemy, section, and is relin- the 9th what us consider what is required by Let settlement, two years, 1. It requires, proviso? quished by a habitation and resid- hundred, for by erecting acres every two clearing a set- terms, by requiring Here is a confusion evidently five years. ing in two residence, to be accomplished years. tlement, consisting years’ section, equally glaring, in the same *There are also other absurdities p^g*(cid:127) settlement, actual such declared, that in default of 'Thus, it is settlers; and that to other issue new warrants may commonwealth from making actual settler shall had actual settlement been as if the in the same manner he shall be entitled (cid:127)made. released is The condition residence 2. What relinquished. and settle- residence releases both warrantee, and death of prevention covenant be considered of the section ment. may enacting in case of prevention. as a convey -settle covenant proviso

o y. and II. If for two does not ever release the' years totally persistence a title, condition of under one of three as- warrant vests’ yet pects. Provided, 1st. a reasonable time after the during period pre- vention, he an his endeavors settle- persists accomplish improvement, ment and his endeavors should not successful. although forfeited, To title to be an of the- suppose although accomplishment is make the of no condition enemy, proviso prevented by mean, use whatever. But use to the giving proviso, supposing time, an extension of at sea. case have differ everything Every rule, ent case could be decisions would No vary every jury. a title decided without lawsuit. But allow warrantee you gain war, after, time and for a reasonable although by persisting, during success, render the effect to law intelligible, give you construction of’ expressions *This with the part. peculiar comports *-> J act, nature case. justified equity Endeavors more than success time of war would be during expensive the- beneficial to the state. this means also,'you put peace, equally By an war-warrantee and the peace-warrantee upon equal footing. and left to discretion. Who' fixed a period, positive nothing courts, discretion to the nature contract ? Who change give in reference to ? substitute endeavor juries performance, Who other time than the legislature contemplated war, and accom- is, 2d. The second he after the aspect provided persists, and continues the residence for five- plishes improvement from the cessation prevention. this is not the ex- side, This is the other what is contended for on acts are to be done. time, contract as the which fixes well press to act in not a for an two- undertaking It is can be contract which implied; act in from the does date of imply undertaking the date of the war, war- after a fifty years but under the rant. no new new proviso epoch, contemplates done in the time as if the act had been circumstances title specified gives a mere mockery. make This construction would prescribed. warrantee, the dangers It would had toiled place through had used no exer- war, at a in no than if he better situation heavy expense, at all. tions war,, after the 3d. third aspect provided persists the conditions at *time before commonwealth perform -* takes of the forfeiture. advantage as a the estate continuing- This the case condition subsequent, regards claims. But is con- until the enters and contingency, grantor con- words, endeavors, call not This which performance. trary all limitation of time. struction destroys con- whole, clear, safe, there is equitable satisfactory Upon released the im- condition to be

struction, but that which supposes the time prescribed. performance possibility a The title of the gives right possession,. III. warrantee inceptive an act of the state. can be defeated And are to be construed where strictly. compensation. All forfeitures STATES. THE OF UNITED IS forfeiture claimed is. The are never enforced equity. can be they and rendered ambiguous, to no The contract itself was entitled favoi’. Time, has been la- The price paid. more so official misinterpretations. to set- and attempts bor and been money expended improvements, has a not by negli- tle. The been public calamity, private prevention to the state. She of the forfeiture is dishonorable operation gence. a to sell them to amelioration, seizes the land all their again stranger. with be countenanced ‍‌​‌‌​​‌​‌​​‌​‌‌‌‌​‌​​‌​​‌​‌​​‌​‌​​​‌‌​‌​‌‌‌‌‌‌‌‌‍in herself, therefore, to taking Even state ought of the forfeiture. advantage a *But can intruding upon what pretext stranger justify L a the case of trespasser, of the warrantee ? This is who possession has forfeited warrantee thrusts himself pretending intrude, whether judge his title. Is chooses to who every person, forcible entries forfeited his ? This would encourage has title possessor of the riots; to rebellion. The commonwealth riot peace would grow tort. is at stake. No man can title own acquire in default of such actual set- turn to That the words of act. and for this common- to tlement and shall and be lawful may settlers, for the said to other actual to issue new warrants wealth warrants, and that settlements thereof, any part reciting original thereof,” &c. There must been made in residence have not pursuance The commonwealth defairlt; may, be heard. must proof party shall, new warrants. grant actual settlers said, however, It are to be issued other on a forfeiture. The terms enter person which gives right transaction, the case of nature show act, as the of the well warrant, a new settler, meant. It warrantee, and not mere supposes It settler, is a descriptio personce. an one had Actual old issued. where an actual contemplates, not mean man who completed, does who the terms actual set the manner in This settlement. appears 10th 5th, 8th and sections

tler are in the *and in the used preamble, L act, in the 9th itself. and even section other actual settlers. new warrants grant commonwealth may to make had failed than the actual settlers than ? Other who Other whom of that sec- in the manner described beginning an actual settlement intention, or under had with tion. It means a person purchased authority There is no express to make an actual settlement. stipulation, Can it implied, by saying to enter a warrantee. given act must constitute settler ? Her that the state to another actual grant the new. title : her act must grant the forfeiture old side, on the same Tilghman, principally E. confined argument after the date that a persistence support proposition, war, to make a gave in time of in endeavors and continued. had title as if the actual settlement the same the objects revenue contended, He were equally population therefore, to be construed not, the act. passing ought so con- will’, like ought a sole view population. and to give into effect th intention of legislature, strued to carry all its parts. operation v. section,

To understand the true of the of the 9th meaning proviso and residence. The is to between settlement war- necessary distinguish “ section, settlement, of the make a rantee the first by clearing, part hundred, least acres for two fencing cultivating thereon a for the habitation of man.” Thus ^erecting messuage -* and this be much to be done two with may was years, propriety “ n called actual settlement.” But this alone not sufficient to title. was give “ reside, thereon, reside, must also or cause five years party family same, next of the if he shall so live.” Resi- first settling long following settlement, dence is the requisite. is which principal superadded settlement, It because is absurd to that residence is say, comprehended the date of the warrant but the sеttlement must be within two from years residence is to continue the first settlement. smaller five years following case, number cannot include the number must be larger (2) (5), But it is a residence is a of settlement. It is not. certainly requisite part settlement, with, additional which must be complied complete title. in the last three months of Settlement be may begun completed Residence, the in- the other commence with years. requisite, two settlement, and to continue five unless the die : ception years, party so that settlement another. are differ- is one residence Unless they thing, ent, If residence be a how can the one commence from the other ? part settlement, condition, the death of the distinct member warrant, from the date of the would vest com- grantee, within two years A title. construction inconsistent views plete with plainly legis- ture. condition, That residence is considered distinct evident part from other Thus it : And that default of such section. parts says lawful,” residence,

actual settlement and it shall and &c. Again, n actual settlements and warrants, and that residence reciting original have not been made.” settlement and residence as also considers distinct. The settlement; to make an actual and if he is to endeavors does party manner as if the actual (cid:127)so is to hold and same settle- enjoy persist, If actual ment had been made and continued. ^settlement included zoo-i continued ? is considered as a Settlement distinct why say If and continued residence. the settlement is thing, separately existing, so, there not a forfeiture ? If not made in residence two years, peace, is another If residence is must be had in essential. from first

two but residence is be five settlement. years five Then, if abolish set all at years, you incompatible you residence; for either settlement or because ; no time is resi- large prescribed but from dence is not to be from the date of five first construction, be at time. There is which may, but to construe settlement be one whole, means to reconcile the thing, warrant; be done in from the date of the residence to be two years Such, then, another, to continue from the first settling. to a title. requisites complete war, there an Indian But at the time of making might then, than necessary, last more years. legisla- probably as to the ture to do money, well warrantee justice paid THE UNITED STATES. OF 22' war, the continuance of prevented, settler : one of might, by whom other be- ; the settlement and residence from completing commencing The provision, and residence driven actually commenced. there- driven if the is, that actual settler (with warrant) settlement,. or the from, warrantee “ as to make actual settlement and shall in his endeavors such persist afore- “ and to. then, case, heirs be entitled to have said," in either he and his settlement had been said the same manner as the actual lands, hold the in made and continued.” : Is the- The defendant are at issue plaintiff upon great question clause, to the condition terms enacting performed, according in time is time ? *If is determined in the what some negative, r:i!2„, L in

the matter lieu of what was enacting substituted required ? These are distinct and clause, questions independent performed in if blended, in other to be blended each not together argument, troduce utmost confusion. are the ob- natural 1st. In is Who inquire, considering proviso, terms, relief to- relief the condition ? 2d. On is such what

jects against that relief ? and 3d. What is be granted are not of relief under the certainly persons 1st. proviso objects section, under done the former part what was having necessary ; set- titles; not united and residence who had settlement complete or settlements warrant; warrantees, commenced tlers without having not. “ settler, If actual shall be 2d. such prevented, grantee such actual- the enemies of the of arms of force settlement, therefrom, and shall in his endeavors make- or be driven persist then, case, as in aforesaid, actual settlement either such “ the said He and his heirs shall be entitled to have to hold 3d. in the manner if the actual had been same as settlement continued.” are, in relief to make actual set- The terms of endeavors persisting as aforesaid. whole is as to question legitimate meaning tlement “ in For if com- his endeavors.” or actual settler done, as to the the- construction intended to be with proper thing plies is done away. condition contended, that must until and resi- is settlement party persist, It This achieved. we inconsistent with say utterly actually dence this, Had the *it . intended spirit proviso. letter legislature *(cid:127) done, been might have been expressed, readily that, war, time should run not warrantee declaration which, a substitute residence is Instead of for settlement and settler. That is a in make such- substitute endeavors to introduced. persisting plainly endeavors,, in as Instead of aforesaid. requiring persisting settlement actual contem- residence obtained or law actually settlement until and residence, which, short of settlement being performed, something plates the same manner as if the actual settlement and residence to operate and continued. Such actual proviso, been made had it, such, from residence and to as the proviso- distinct is considered as actual to make set- And if the endeavors party persists relates. COURT SUPREME Si clear, fence, build, cultivate and aforesaid tlement as reside), (that if the had in the same manner as actual settlement he hold then is to In residence. residence continued; wit, proviso, made and the effect of where endeavors persistence nowhere contemplated, except if,” manner as be, same &c. to hold declared to and residence as different considered settlement thus .having things, plainly one, to attain the shall be in endeavors equiv- .have declared that persistence of both. The affords relief alent proviso accomplishment that settlement residence on the and solely ground, ground, had. If the actual settler or is their construction! warrantee per- How strange endeavors, until makes a he sists actually had land as if been made and hold thе continued. if,” &c., manner as all the in the same entirely 'This renders words nugatory. to a the case to which the applies. This is not case applies which, residence had not taken from a place, which settlement &c., if, n as circumstances, the look- party consideration hold proper Nullum, other simile est idem. if, which is to be As ing something doesnot mean, the same. all the If in endeavors is proviso requires. unsuccess- *Persisting -* endeavors, the ful, are still within of the At- they meaning proviso. the in end, ; is not evidence endeavors the else only persisting taining successful, as, success, on .all must endeavors without necessarily be no If the cannot endeavors in. there end principles, persisted attaining the to did not necessary, why legislature be absolutely expressly prescribe rather, means ? the not the Or the why, already end and having prescribed did end, section, in of the of the the former part they say anything endeavor ? in the (the proviso means) side, the on the other benefit the the construction only By time, is the actual existence proviso, during settler gains that, then ; to war last raging ten impossibility perform in endeavors the time, whole his title would years, party persist settlement and (cid:127)still without residence. incomplete, to such ruinous hardships never intended whose impose persons money time taken, on actual settlers. If only had was their object, they why war, without a circumstance during give absolutely, requiring and trouble to must be attended ? great with make expense party Why unless intended as a substitute for necessary, (cid:127)endeavors persistence set- tlement and residence ? ; does more harm than party On these it proviso good principles, once, to strict him, to fall victim letter of better condi- these avowed and stated fairly clearly tion. Had principles hello, man, have flagrante paid money would warrants ? in debt, remained involved state until close of No. The war. said, are not your war, But it is to endeavors you during There is this after sort nothing ; to peace. begin, law you ? is required Why should not persistence

(cid:127)and why, peace, enacting recur full time, force, ^clause, after some certain if this was war, and for Why during

intention ? time after say, OF THE UNITED STATES. .1805] condition not run .peace, against you Surely, persistance (cid:127)endeavors make a settlement refers to the time which a hindrance during ; existed and cannot a time apply when there would to hinder nothing itself. compassing thing is the relief it What is time granted? They say, only suspension forfeiture, There is idea of kind war. held up a forfeiture, law. Instead of with condition. dispensing dispenses declares, done, that if shall amount something performance (cid:127)condition, and the shall hold in the as if same manner the condition party itself had been It is not inten- performed. enough say, general tion the forfeiture for a law time. Such spirit suspend spirit and intention must be shown and extracted from the'bowels (cid:127)act. construction, viz., our that two from the date of the By years’ persistence title, warrant gives complete rendered and con- everything intelligible

sistent, and of the act wоrd has its effect. proper meaning theirs, all is confusion and confound the inconsistency. They larger with the smaller number make the mean- they legislature speak whole they reject law. ing, passages settled, If it is settlement, endeavors to make actual persistence is a the condition, is such performance long how be? persistence from the date the time (cid:127)Surely, years only that being which, clause, settlement is to and as enacting is a persistence substitute for must be term, for the same and not longer. terms, *The act affords no other no other rule of construction. L Persistence residence, cannot to the five apply because there can years’

he no settlement; residence without and when there had been a fruitless per- severance, for cannot, endeavors to attain a settlement, there _for in the nature of be a attain things, residence; persistence out there cannot be being question, presupposes settlement, and which cannot exist without settlement. Besides, the excludes all ideas endeavor being applied residence; are attached are to as if actual operate settlement had made been and continued. endeavors Consequently, to be commensurate the time viz., for required from the date of the warrant. McKean contrà. The defeat of (Attorney-General Pennsylvania), 1791, Harmer St. Clair show that the of the United power States, aided that insufficient to that protect was by Pennsylvania, part therefore, of the The was country. view legislature, $80 $20 not the sale of to the lands. reduced 100 price per They rather, acres. not a or subsequent, Settlement condition precedent; was view, of the consideration of the sale. same With part acres, from 1000 to 400 so that on reduced the size of the tracts not their tract 400 acres have a soldier. was theymight intention, that a tract one or should be men. large any person purchased by body tract of 400 acres. The meant to have Holland They family upon every soldiers, to 1162 tracts, 1162 dis which was purchased produce Company

15 COURT SUPREME was, The that number of tracts. the same among object tributed a barrier war, so as form settled, to possible, country said, a in contem- peace of the Indians. But it is the incursions for immediate' so, enact the ? why stipulate If did why plation. they Imme- to in their endeavors settlement ? why purchasers oblige limit could not mean to the- so, and if they diate settlement was object; as meant a as long perseverance *two perseverance they *28] act this to be their there was obstacle. shows any Everything meaning. held had been was SO' states that at which preamble price 2d but actual settlers. The section not discourage, high purchasers, “ cultivate, and settle the lands who offers sale to persons improve same, cultivated, cause and settled.” The- the same improved declares, have person may 3d section that upon application settled and or is desirous to settle improve, plantаtion, improved, land-office, there shall to the be- aforesaid, limits secretary limits,, to him a land within the said warrant for granted any quantity be sur cause the acres, not same exceeding requiring surveyor The 5th. for the use of his heirs and for ever.” assigns veyed grantee, warrant, to section of any survey virtue prohibits, deputy-surveyor, tract of land settled and improved, prior- actually to the date of the of such warrant with deputy-surveyor entry district, such settlement improvement. owner except of any person 8th section authorizes the upon application deputy-surveyor, who has made actual settlement and mark survey improvement, to the out the lines of the tract may, by conforming im entitled, act, of this of such settlement become virtue provisions does not 400 acres. The 10th section pro exceed provement, provided vides, that the lands thus settled and according actually improved, of this remain liable for the interest provisions purchase-money settler, from the dates And if such actual improvements. being death, hindered as aforesaid enemies of the United *of this in ten neglect apply passing -1 act, others, lands commonwealth the same war may grant rants such defaults. reciting The 9th section and if it be not strictly contains condition precedent, contract, with, the title. It is a purchaser complied

with his The act must be contract. several construed eyes open. to, must be must refer considered The second and third parts together. section, and ninth be controlled it. be- is a ? It is a condition be performed, What condition precedent if A. marks be- As, fore the can if a man estate pay vest. grant vest, until the 100 fore such shall have the land. No title will day, marks are paid. It has been as a condition who has considered by every judge precedent, Thus, sentence it.

passed Judge opinion giving ates, Ye the terms mandamus, sides, It is all case admitted on says, are, conditions and residence the first precedent place, in I lands, myself of absolute estates these cannot vesting bring either in believe, efforts, that unsuccessful with, they dispensed by

16 STATES. THE UNITED OF 29 actual settlers.” The condition is not dis or (a) the case warrant-holders death, case of or force by by in *the prevention but pensed re *- arises, States. The here of the United question enemies arms of the Pennsyl variety in in agitated forms, been the state (a) question This sensibility subject. In is said have excited on vania, degree great by Pennsylvania, in the court of supreme was obtained rule year why a manda secretary land-office, of the to show cause Company, Holland commanding patents him to and deliver awarded, prepare various mus should warrants, April 8d, had obtained under the act of they 1792. land, for which tracts of opinions following their terms:1 delivered judges legislature, by April 1792, the act of 8d meant to sell the re- J.—The Ch. Shippen, west state, particularly lying those on the north and of the rivers lands of the maining consideration-money paid, issuing the warrants. Allegheny. Ohio lands subject, that, possible, if should be set- They had, likewise, namely, another terms, be еxacted however, The latter from by improvers. tled passed part act at a time hostilities existed on at all events. The when grantees, they legislature, would there- uncertain, cease; It was when the Indian tribes. be taken the existence these fore, contemplated might out, that warrants impossible make it for the warrantees hostilities, might long continue so as to time; not, perhaps, until these hostil- required, length make the settlements that the settlements should entirely Yet, they provisions cease. make ities should expressly after the but within two peace; made within reasonable time As, however, they to sell the and were of the warrants. wished after the dates immediately, unreasonable, consideration-money have been would to receive to be made on selling, require their views settlements have defeated probably, cleared, built, acres, ‍‌​‌‌​​‌​‌​​‌​‌‌‌‌​‌​​‌​​‌​‌​​‌​‌​​​‌‌​‌​‌‌‌‌‌‌‌‌‍hundred houses to be and lands case tract of four each They impossible the Indian war. rendered continuance of acts should be such in the subject present dispute, follow- therefore, proviso, make the which is settler, any such always, nevertheless, ing Provided words: warrant, shall, force of arms of the original succeeding grantee, from such actual or be States, making United be prevented enemies of the therefrom, persist in his endeavors to make actual settlement as driven to hold case, he and his heirs shall be entitled to have and aforesaid, then, in either as if had been made and con- lands, in the same manner said tinued.” which, of the act actual settlements to be made ? The same section When were such proviso, gives unequivocal question, a direct and answer to this the above contains settlements, If the next after the date of the warrant.” space within enemies, time, owing to the force or reasonable dread made within were not endeavors, evident, parties that the had used their best and was settlement, then, by express the residence of the im- words effect dispensed with, and their title to years afterwards, expressly for five thee provers contended, patents accordingly. It is complete, might issue lands was mean, endeavors,” if,, be extended to proviso, their persist words hostilities, from they making should be Indian prevented, they longer prevented hostilities, those settlement, yet, should be no when incumbent on them then to to make such settlement. treaty peace, it was (and they they had have exacted those terms might, pleased, they they have been have not done so : have not, perhaps, unreasonable), to the term of two expressly confined the time such settlements meaning sought for, can alone be of the warrant. Their intention the date to be no they used, me, there seems to the words meaning, would not ambiguity. contrary had been have made great If Coxe,4 Commonwealthv. Dall. 170. Cranoh —2 the for is prevention perseverance years equivalent perform- ance the Is the to be taken for the of condition ? deed ? *What is the settlement intended ? We it includes five say, years’ *31]J “of residence. The such actual settlement proviso as afóre- speaks “endeavors,” least, nse the word at if nota supposes possibility, probability, things stood, as failing, hostilities, then of those on account of and would, endeavors the therefore, when expressly purchasers have exacted actual settlements to be the no longer run risk in them. making having consideration-money, required state the received settlement within prevented by case, dispensing if not and in enemies; that with the condition declaring that title good settlement and their shall be then andas effectual, continued, they the as if settlement had been made and I conceive cannot could settlement, mean to that at any although exact future indefinite time. And it is said they meant it indispensable, complied that condition to and that must be inwith time, construction, reasonable we have not left that latitude of legislature to us as the expressly have limited the time themselves. urged, is that the legislature get country settled, main view of the was to formed; was, views, barrier one undoubtedly, of their and for that purpose, they given have extraordinary encouragement they settlers; had, individual but likewise (cid:127)evidently, view, another increasing state, by that the revenue ol sale “ lands. The very title the act for the sale of the land is vacant within this object effected, (cid:127)commonwealththis have not they really latter but the means of the voluntary purses settlers; men, it could alone be effected of rich or large n companies men, upon lay prevailed who would not have been out such sums of money they done, they thought as have purchases clogged had their impracticable conditions. “ I have hitherto argued presumption, persist words in their n endeavors,” settlers; relate to the as the grantees considering as well in words they it proviso, may (cid:127)of whether doubted, be well relate to other “ ” (cid:127)settler than those who have been driven from their settlements persist word n (cid:127)appliesvery are, properly if such settler, such: words actual any grantee, shall, by arms of the enemies of prevented force from making- therefrom, or be driven persist his endea- then, to make such settlement; case, vors either he and his heirs shall be entitled,” Here, &c. besides that the grammatical construction of referring the word “ persist” antecedent, last answered, but the sense of it only applicable best begun, to settlements to the grantees. condition of the There are two members sentence; grantees, who, one it supposed, prevented relates from making settlements; settlers, their the other supposed to the who are away driven from settlements. words, them, proper; The latter are as as to the grantees never began says, improper. case, is, act either that if the grantees prevented settlements, are their or if the settlers are driven away, their complete settlements, endeavors to their case, either they be entitled to the say, land. I will entirely this construction is free from doubt; if therе was, question. it would be an end taking granted, it for it bar, as has been done at the that the words relate to the as grantees, settlers; although yet, regard well inaccurate with former, theme, legislature could mean grantees seems to exact from the their best settlements, space make the endeavors to within the of two of their the.date warrants; time, they at the end of which have been from complying with law, by terms of the enemy, they force of had actually paid for the land, they patents. legislature their If really then entitled to meant differently, I say can is, they very unfortunately expressed all meaning. OF THE UNITED STATES. a

Huidekoper-v.Douglass. former of settlement .-said,” the description referring thereby least section, fencing cultivating, -of by clearing, r*82*- thereon a hundred, messuage erecting acres '^two I which mean not to another awarding question, a mandamus is propriety unnecessary. will make it majority of a of the court (cid:127)discuss, presume as I a decision attendant the difficulties long and flattered hoped myself, J. —I have Yeates, onthe justice equity brought would have been before present motion compelled judicial authority, who are solution, and not come before often decision; question occurred to deliver the law as find written our frequently engaged act which has so minds, April .to our under the of 3d attention our western circuits. consideration-money of 1162 war- paid the Company have to the state Holland very considerable rants, land; making of besides surveying and the fees on 1048 tracts community themselves, to and useful to the (cid:127)expenditures by exertions, their honorable n (as the sums ad- Computing correctly stated), has been order to effect settlements. interferences, quantity and the of prior improvements the and vanced, by lost tracts on their granted (cid:127)one hundred each individual for actual settlement acres to said, whole, expend- it and have been lands; is the between averaging $230 $240 lay the on now claim to. company, ed each tract of land previous to, passing at time of the of The Indian war which and and raged Grenville, thrown insur- .law, treaty at Fort must have and until the ratification of the imme- way sitting of down persons, mountable in the those who were desirous bars of must neces- lands, military posts. on These obstacles diately any at distance from sarily impending danger, have time after the removal of continued for some difficulty of 'imperious inhabitants, state of the circumstances; the scattered settlements, in obvious, it most early collecting supplies besides, of is provisions; instances, sur- designated and appropriated could not be made until the lands were veys, depending especially so, express and more warrants have relation to others where warrant, spot ground. a some of leading particularly locates known sparing expense pro- to merit, Company’s On the head Land of Holland beyond settlements, believe, the mountains and dissenting cure I there are few voices n one variety united, circumstances, conclude, equitable to that a be induced will of the com- produce proper degree public would not fail a of influence on ¡to office, judicial give opinion are to munity. compelled by we the duties our whether, warrant-holder, act of 3d of upon legal question; the abstract if a under the prevented from April 1792, begun completing has to make and is same, “by the enemies of the or is driven there- force of arms of complete- same, new but fails in accom- .from,” and shall make endeavors to dispensed with thereof, the condition of actual settlement and residence is plishment constrained, subject every extinguished and ? I am after consideration giving my power, declare, following for the rea- negative proposition, that I hold the of the act body sons collected from itself. distinctly the law marked in inducing The motives enact 1. ” “ (than prices law for other lands those included in preamble, fixed “ actual settlers purchase 1768) high, discourage the Indian are found to be same.” 3 Dall. 209. purchasing improving and Laws Allegheny of the rivers and Cone- lying The lands and west Ohio and 2. north cultivate, improve and wango creek, persons are offered for sale to who settle the cultivated, improved settled, price for the same, or cause same 2, lowered, price of thus By hundred acres thereof.” lands is 7?. 10s. § (cid:127)encourage actual settlements. “3, improved, By any person may who have settled or application 3. § or desirous aforesaid, the limits there shall improve, plantation, settle exceeding acres,” application hundred &c. The granted to a warrant not four (cid:127)be him DouglasB. man, thereon, reside residing, habitation causing family next his first of the same.” of five years following settling space no time is limited We *„_1 proviso, say, *By persisting. effect; otherwise, means persisting object legislature- granted, up accompanied, previous to take lands but it must be either not set- improvement, expressions improve tlement of desire to settle and plantation; form, all such have in this warrants issued. By actually 5, improved, prior date entry 4. lands settled § deputy-surveyor district, surveyed thereon, with the not be warrant ex- cept improvement.” This owner of such settlement marked of. preference warrant-holders, may paid money actual settlers over who into the treasury improvement even, perhaps, for a before particular tract, land was medi- in a intentions tated, shows, striking manner, legislature. By 8, deputy-surveyor shall, upon 5. “the of the district application § improvement an actual settlement and made on these survey such, and mark out lines of the tract of four hundred exceeding acres for applicant.” equivalent alone are improvement The settlement and to a warrant; out, by 10, passing be taken ten the time of act. § my I found take be the true opinion, legitimate 6. on what I construction of. which, proviso, in the close of is to be found the from whence all the spring § subject. doubts on the bar, It has been said at the that three different put constructions have been on this if the been prevented section. 1. That warrant-holder has Indian hostilities, from making his settlement within two next after date of his and until (thetime the 22d of ratification of Wayne’s treaty), December 1795 Gen. the condi- gone. tion residence extinct and 2. though prevention, That dispense condition, did with the wholly running hindered its within that period;, persisting in his grantee’s and that the endeavors to make an actual settlement and res- years, thereafter, idence for five within reasonable time shall or be deemed a full com- pliance events, except with the conditions. And 3. Thast in all the death of the party, absolute, vesting and shall the precede complete settlement residence of the estate. Though great disagreement obtained, such as to the true meaning this § this, very both that it is agree inaccurately, inartificially sides worded and obscurely.. Thus, beginning clause, will be found towards that the words actual set- an as sense, tlement” are used in extensive inclusive of residence for five years; parts its constituent are enumerated and because described be by “clearing, fencing, cultivating acres, least two acres hundred contained in one survey; erecting messuage man, thereon for the habitation of or residing, causing a family thereon, space years to reside for the of five next following his first settling the same,, clause, if he or she so In long shall live.” the middle of the the same words are used sense, in a limited and are coupled expressions more with the residence,” “and and in. section, proviso, in the close of the the same words, as I understand them, in a grammatical construction of the whole clause, strict must be taken in the same large- comprehensive sense as conveyed; first because the terms “such actual set- tlement,” section, in the middle are repeated proviso, used in the and refer to the in the foregoing part; settlement described and the words “actual settlement as afore- said,” evidently qualities relate the enumeration of the of such settlement. Again, to be within confining space settlement years two next after the date. provision. warrant, seems A war strange with the Indian natives subsisted, passed, and continuance when the law its was uncertain. The state of the country might making prevent surveys years; several and until the lands were ascertained., appropriated by surveys, precise places where they lay could not be generally.

n THE OF STATES. UNITED would be defeated, if tbe totally war continue two after the years n dateof *the Besides, warrants. would be proviso repugnant r:¡!g^ ^ clause, and therefore void. enacting provides war, title should not be lost incipient the settlement thereby Still, I apprehend, legislature may fairly that the intention of the collected from their own words. But I cannot accede to. first construction said to have been made proviso section; rejects wholly superfluous, this ninth because it as and as- signs operation subsequent no “if expressions, any grantee per- whatever to shall endeavors,” &c., taking liberty sist unwarrantable with the law. stated, me, сan I subscribe to the second construction because it to mili- appears Nor against general spirit prominent tate words of and distorts its great features, already cited, subjoin. and for other passages reasons which I shall I the third construction, again enacts, adhere to will now consider 9. It in the first § instance, survey that “no warrant or lands, lying north and west of rivers Ohio n (cid:127)and Allegheny Conewango creek, any title, grantee has, shall vest prior unless warrant, or made, shall, space the date of such caused to be or within the years same, next after the date of the make or cause to be an actual settle- provided thereon, by clearing, always, nevertheless, settler, ment &c.: that if such n or original succeeding warrant, shall, such or any grantee, by force of arms of prevented making the enemies of the United from such actual or therefrom, persist and shall in his endeavors to make be driven such actual settlement case, aforesaid; then, in either he and his heirs shall be entitled to have and to hold lands, in manner if the the said the same actual settlement had made and con- tinued.” attempt endeavor, signifies on,” “per- “Persist” is correlative “hold severe,” beginning &c. the words of section restrict the settlement “tobe within two warrant, by clearing, &c., after the years by residing space next date for the following settling same, next his first if he or she long of five shall annexes a live,” thereof, penalty and in default of forfeiture in a mode prescribed; penalty, relieves (cid:127)the &c., and in his force, shall endeavors to make such actual settle- read the relief, then, words, goes merely aforesaid. The as I as to the ment as times warrant, next after the date of the and five next years following of two same; proviso declares, settling &c., first party’s persisting, a continuation of settlement. equivalent to paraphrase the ninth Every more I section thus : intelligible, To be warrant-holder be made on his next after the date shall cause settlement thereon for five next following and residence first settle- of his nevertheless, warrant; interrupted forfeiture a new if he shall be ment, pain force, doing periods, these acts within the limited by external obstnicted efforts, in a in his reasonable time after the persevere removal shall afterwards accomplished, advantage taken of him objects are force, until those of his settlement. continuation successive want adopted, appears to me perfect symmetry I have to restore to the The construction easy due It affords an answer to the preserve proportions. inge- its act, and to whole Company. If, say the Holland by they, the counsel of imme- proposed question nious settler, delay, goes ground, a on the the 11th issues, a warrant diately after day, he is by savage until the next when driven off a 1792, stays and there April spot then fixes his residence as near the he can defence; a and as gallant enemy, pretensions all safety, equity does the warrantee lose ? personal consistently with his there, firmly adhering soil, to continue to the good fortune Or, suppose, he has the length, compelled but re- ; hostilities to Indian or three go nothing, necessarily begin and must he again all to superior force; by move The proviso supplies means. negative by queries both answer to I —

21 *35 claims under this act must be *Every person was prevented. that if the or actual settler shall be It does not say, pre- settler. or driven vented, ; but, or driven he shall hold away, away, he

he shall then shall hold. persist, every day soil, of successive and week he resides on the residence;, chasm entitled, commonwealth; to credit in account a return of he is country it, after making when the state of the will admit of all reasonable- peace, complete resume the allowances, occupation must settle place according letter, yet be- Although charity ought ment. cannot take performed oypres, pursued. 266; and the substance Vern. Fonbl. 221. objected, unreasonable, with the state is been such contract hard land-holders, upon: it ought said, reply, they on those an'd not to be insisted they engaged bargain, by consequen- before in the and must abide knew terms of it only question is, interpretations given ces. The whether the be correct or not. conformity provisions equally A due of the act is exacted of those who- 7. labor, on their of those who preference personal ground found lands as it on money. payment I know no other distinctions between these two sets of land-holders, residence, than that the as to actual settlement and claims of the former by them, single plantation, must be limited to a and the labor exerted or under their may purchase many they can, latter make, direction while the as warrants as required by 340-41. cause to be settlements law. Addison admitted, sides, are, It is on all that the terms of actual settlement and residence precedent place, vesting first conditions to the of absolute estates in these lands bring myself believe, dispensed with, by I cannot are unsuccessful warrant-holders, efforts, instance, cither case or actual settlers. In the latter soil, been, decisions have that a firm adherence to our uniform unless controlled such, circnmstances, imperious preference was the criterion which marked the great and I have seen no reason alter my opinion. cases; Lastly, preamble, 8. it is obvious from the the settlement of the- § country, law; latter, as well as sale of were meditated this however, object appears secondary legislature. peopling to be a with the the country, by a men, certainly extreme hardy frontier, powerful race of to most the most barrier savage enemy. minute, and, thus Having fear, tedious, delivering my opinion, I it remains- few say respecting persons for me to words those who have possession taken lands, supposing the dead, according of these warrants to be to the cant word of the- who, though parties implicated day, suit, are asserted to be in our deci eye If the lands are forfeited in though they fully sion. have been paid, for, of the condition advantage the breach can be taken the commonwealth, prescribed in method law. Innumerable mischiefs and endless confusion would ensue, taking upon from individuals judge themselves to when warrants cease to- validity, and pleasure. entries such lands at their will and I will ¶. repeat jury Neighman what we told the in Morris’s Lessee and Shaines:1 If the the law expressions particular them, as we find we should have no diffi pronouncing that no culty advantage should take of their wrong, own men, that it not lie in the mouths of of, does like those we are speaking say dead; we will take and possession, thereby warrants withhold the entitle our reap selves to benefits from whole, an unlawful act.” On the I am of opinion, that the discharged. rule should be Smith, J. —I have had a full opportunity considering opinion delivered I brother Yeates : I my- my perfectly principles, concur in all its confine simple declaration of I hope, indeed, could not self assent. add to the argu-

1 4 Dall.209. *36 STATES. THE UNITED OF

Huidekoper Douglass. v. on the ? No. land ? Going ? implements is Buying *What persisting and who is to still is de- something, for that. But do not contend We must be decided fact jury termine it is It is a which every what of endless litigation. case which be productive would on the he has used equal language, ment; certain, and I am I could occasion. By discharged. the rule he Court. —Let subject agitated has been revived pronounced, Since decision was this 1801-2, petitions presented of interesting In the winter several were various forms. committee of the requesting interposition, their but the legislature, the intruders to the admitted, reported them, and petitions referred, against senate, to whom these were justice. after this exclusively to of But soon controversy belonged that the the courts existing controversies, introduced, gave recited the report a bill was warrantees, extraordinary legislative instituted opinion against claim this bill apjiearance produced of parties. tribunal to hear and decide between the effect. As soon as it be Company, but without remonstrances from Holland invited law, company attorney-general came a and the counsel but, upon mature consid judges, carrying effect; conference with the of into on part business, and the-company taking any declined in the as eration, the counsel for 1802. the 24th of June An signed judges, their reasons a letter addressed to the dated at on judges, Sunbury, of which was tried formed, by

issue was then the direction of Justices.1 following, 25th November before Brackenridge, Yeates, Smith the decision of as Mr. is as follows: That charge, delivered Justice Yeates, present feigned issue “settle the controversies jury the court and on the the should Ohio and Alle- contending from claims to lands north west the rivers arising devoutly gheny good to be wished for Conewango creek,” an event peace of that indispensably necessary citizen. “It that the state interested, as preserved, justice effectually pos- as complete parties done all (Close preamble April 1802, p. 155.) the act of 2d We have hеsita- sible.” intentions of the declaring, fears, good tion in we are not our that the without legislature, sit, we will not be effected. We expressed law under which now hereafter. hope acknowledge we shall our mistake happy enough obvious, warrant-holders, well validity of the claims as settlers, the act of depend the actual must the true and correct construction of April 1792, 3d considered as solemn contract between commonwealth and particular may vary the gen- each individual. The attendant on each case circumstances many legal eral conclusion in instances. enjoined on the late act. The first proceed We of the duties us discharge granted question proposed to is as follows: Are warrants heretofore our consideration commonwealth, April 1792, under the act 3d valid and effectual in this applicants, bar the same land to other under granting this commonwealth aforesaid, fully fairly complied the act in cases where the warrantees have not required by act, the said improvement with the conditions of residence respectively, time date or within two after ? before the warrants for the mandamus to proper observe, It will be here the motion the late secretary land-office, Company, at the instance of the Holland members of court, subject, opinions. were divided great consideration of was, “by force of opinion, Chief that if a warrantee arms Justice seemed to an actual as de- the United the enemies of therefrom, persist in make and should his endeavors scribed driven condition thereafter,” performance amount to actual settlement it would except events, us that in all the death of Smith) thought, law. Two (Yeates Grantees,4 Attorney-Generalv. The Dall.237. *37 ceased, *When the prevention they were to settle reasonable time

otherwise purchaser would be in a better situation than the pur chaser of because former title, get condi tion of settlement. party, the settlement and contemplated by act, residence precede should vesting of the complete and estate, absolute and that every warrant-holder should cause settlement years to be made on lands, within two next after the date of the warrant, and a years residence thereon for five following next the first settlement, on of pain forfeiture, by a new warrant; if, nevertheless, he should interrupted be or obstructed force of the enemy doing acts, those within the limited periods, and shall persevere afterwards efforts, in a reasonable time after the removal of such foree, until objects these be accomplished, advantage should no shall be taken of him for the want aof continuation of his successive settlement.” To this opinion, Brackenridge Judge subscribes. It would ill become say, preference. us to which of these constructions is entitled ato It is true, preamble that in the April of the act of the 2d 1802 (p. 154), it is ex- pressed, that appears (3d April 1792), from the act aforesaid of that the common- wealth regarded compliance a full with improvement those conditions n andresidence, indispensible as an part purchase of the or consideration of the land itself.” But it is equally certain, that the true test of title to the lands in question must be resolved into the legitimate meaning 1792, of the act of extracted ex viaeribus suis, independent any thereof. I legislative exposition opinion adhere to the I formerly delivered in ; yet, interpretation bank if a different of the law shall be made by courts competent jurisdiction resort, in the dernier I bebound to acquiesce, though I may to change my meaning able sentiments. If the ques- the first tion be, are titles under April warrants issued under the law of the 3d of 1792, for lands north and west Allegheny creek, rivers Ohio and and Oonewango good and available against the bar the commonwealth, granting so as to of the land same to other applicants, fully where fairly complied the warrantees have not with condi- tions of settlement, improvement residence, required by any time be- fore, or years within after, respective warrants, two of the in time profound dates peace, when making settlement, by were not such actual force of arms of the well-grounded enemies of the United or reasonable and fear of the -enemies of the savages ready, language ? The us, answer acts before and can admit of no hesitation. “ No title, warrant or survey any for those lands shall vest unless the has, prior to the date warrant, made, shall, of such made or caused to be or within space -of two next same, after the date make or cause to an actual set- tlement thereon, by thereof, clearing, &c., and in default it shall and be lawful to and for the commonwealth to issue new warrants other actual settlers for the said lands, or any part (Act April 1792, 8.) &c. of the 3d of “the thereof,” Bor com- § monwealth regarded a full with these conditions of settlement and residence compliance as an indisputable purchase granted.” or consideration of lands so (Pre- amble to act of 1802.) be, under all given supposed the true whether or meaning question tranquillity danger, or imminent peace war, perfect circumstances of of times of are constrained ipso say, warrants are not and dead in law ? we that our void facto ‍‌​‌‌​​‌​‌​​‌​‌‌‌‌​‌​​‌​​‌​‌​​‌​‌​​​‌‌​‌​‌‌‌‌‌‌‌‌‍proposition. minds refuse assent to the affirmative general subject. case, "We Put the that a warrant taken exemplify will ideas on this our out, early accuracy pre certain with island, or describes 1792, calls for boundaries, cision, by military natural distant from waters, the course of or other post, intentions of an act evidencing the fullest warrantee, necessary preparation provisions, ual all the applied for, settlement on the land cattle, &c., cannot, degree personal laborers, of husbandry, implements

24 THE UNITED STATES. OF n *38 *If the settlement and continued witbin begun years, there could be is sufficient. Until survey, appropriation „ no settlement, -and until there could be and there appropriatiоn, *- could be no unless the settlement made effectual *with- after the date (cid:127)safety, seat himself on the 'by just savage proviso terror of hostilities. Will not the in the 9th reason of sec temporary tion excuse the' April non-performance of the act of 3d of an ren highly absolutely impracticable, by imperious circumstances, dered if not dangerous, suppose, warrant, depending, (cid:127)over which he had no control? Or another in point of (cid:127) description, warrants, which the leading district-surveyor, other either from the stateof the hurry office, of the business of his other country, causes, could not survey, nearly expired, depredations until the two Indians term, not this suspend operation (cid:127)should intervene for the residue of also us, the forfeiture can clearer to than that the Nothing terms of the em independent of cases; strong of, brace and aid such expressions use we satisfy our minds that require strong proof could possibly 'mean to make a of the lives of her wanton sacrifice citizens.1 impossible rendered books, It is said conditions the act of God b; a; b; Litt. 206 170; 449, pl. 50; (cid:127)void. Salk. 2 Co. Co. Roll. Abr. 1 Fonbl. strictly precedent performed 199. But conditions must to make the vest, estate by God, the act of though impossible, aliter, become even the estate will not vest; a; subsequent. 183; 12 Mod. Co. Lit. 218 2 Vern. 339; 129, conditions 1 Ch. Cas. 4 231; 183; 138 Salk. 1 Vern. Mod. 66. We desire to be mean, understood to that “ prevention of arms of the enemies of the by not, force in our States” does (cid:127)idea, absolutely dispense settlement, with annul the of actual improve and conditions forfeiture, residence, suspends ment and the limited protracting periods. Still, performed ay pres, the conditions must be whenever the real terror aris ing enemy subsided, honestly and he from the shall in his endeavors to settlement, improvement fairly .make such actual and until the conditions are and fully complied with. wherein the supposed, principles Other instances be of prevention may effect ually pretence under applicable. person, being settler, If a an actual surveyed, seat himself warranted and within the previously period allowed, on lands n under a fair construction of the warrantee, his making settlement, and him from possession, making settlement, withhold the obstruct his he shall derive the party (cid:127)no benefit from this unlawful act. If himself is the cause wherefore the never take performed, advantage. 206; Doug. condition cannot Co. Litt. 246, pl. 5 661; 454, pl. 8; 1 Rol. Godb. Vin. 25. Abr. 76 convey trust, enough have said our point. We that we sentiments on the first proposed, is, that such question, may may 'Our answer to the warrants or not be commonwealth, against according valid and effectual law several times The result (cid:127)existing opinion, facts such warrants. of our founded on our accompanying is, depend on, the matter case must governed (cid:127)best consideration of peculiar its own circumstances. by, decision are the titles that have the land- question The second issued from patent, whether (cid:127)office, aforesaid, good under the act warrant or and effectual aforesaid, under the act commonwealth, any person claiming cases where such authority, grounded and have been on the of two titles have issued on certificates certificates, usually prevention called other evidence justices peace, prevention, nature and of such being given whereby, alleged, circumstances as is 166, pacification,by Wayne’s Lowry, treaty, it was General In Hazard v. 1 Binn. was a survey, (cid:127)ruled, as well reasonable making that the excuses a time for a settlement which asa prevented by settlement; enemy. after the had been and that tbe five- mean to in tbe two Did tbe dispense years. Tbe made in 9th. residence, if tbe settlement could not be two years years’ was, to- vest, unless, tbe title shall not <fcc. Tbe only difficulty section says, made. *If tbe tbe time tbe settlement should within which limit If tbe be is improvements- is incomplete, persist. still could, improvement residence, required by the said settlement, the conditions of complied not be with ? ma/ndamus, proved trial, the motion for the on evidence, It was stated on settling a formal mode of on- property, being that the board desirous of certificate Allegheny the rivers Ohio and patents lands north and west of might issue for opinion the then creek, required Ingersoll, attorney-general, of Mr. Oonewango consideration, form of Decem- thereon; adopted, on due was afterwards on 21st Gazette, patents, 1797, published Pittsburgh ber ordered to be which was issued, course, prescribed being complied form with. on supreme attorney-general, executive the- opinion magistrate, The received (whose legal of the bar property, respectable board of sentiments was, that questions always weight), day, certainly and deserved at that great prevented by if a force of arms of the enemies of the United States- warrant-holder was date making within two after the of his settlement, that the condition persisted afterwards his endeavors to make such was- extinguished endeavors, to mean gone. Persisting something, was construed accomplishment attempts, essays, &c., imply success, but that did not absolute objects By some, thought, to be effected. that the endeavors were- intended to the time and were to be commensurate as the actual parties avail the manner if the settle- tantamount, and in the same ment had been made and continued.” Shames,1 Neighman in Morris’s at Pitts The decisions of court Lessee ». opinion questionable; make the and two of the- burgh, May tended to former justices supreme adopted doctrine, judgment in their between court different case, it was Company argument the Holland and Tench Ooxe.2 In the insisted resolves, in their and the- plaintiffs, property, the counsel for the board of vice; represented commonwealth, pro and that in governor, lido patent, them which could not be defeated. terests vested-under afterwards settlement, improvement hereto. If the and. "We cannot subscribe conditions of the different indispensable, events, they residence at all an act of become passing- legislature. governor, qualified negative branches of the who has a injunctions laws, dispense ; said, of cannot with their it cannot be that this case falls- constitution; within the the 9th article the meaning of section second of “The- reprieves par- and governor power forfeitures, grant shall have to remit fines and and dons, except impeachment;” merely penalties consequent on case of relates public pretended, by any act what- property, offences: nor can it be that the board of own, But the fact derogate binding ever their can from the force of law. an of dispensing cannot, any justice, with the law of with of be- degree intention of 1792 They of considered governor property being. ascribed to the or board for the time functions, respective duties in themselves, virtually discharging in their different opinion of the carrying execution, according generally day; the act into to the received accrued, purge forfeiture, really intended if it had nor to excuse the- they never condition, complied pub- if it had not to the non-performance agreeable of been with expressed in a will, legislative lic contract. partial suggestion by law thus down in A false or England. The rule of laid king’s prejudice, whereby deceived, the he is will make the- king, to the 229; b; 1 44 51 3 Leon. king 632; 48; a, void. Hob. Cro. Eliz. Yelv. Co. grant of king, 226. But where the are the words of the and 398; 2 Hawk. 3 Bl. Com. words 5; 2 4 Dall. Ibid. 1 209. 171.

26 OF THE UNITED STATES. 40 [1805 are made, said, but the residence not it is he is not completed, persist.; But if off, that the actual settler shall be and shall says, driven , he to do &c. What ? persist ‘‘‘certainly, Something, [*41 which remained to done remained to be done but to and nothing this, to do complete residence. But if he in his endeavors appears law, he there he not be de that has mistaken the said Eyre, J., Raym. 1 grant, per 50; ceived to the Sir Samuel Ld. 6 Co. avoidance b, arises, accord. of be b, any concerning question the lands enjoined forfeited, by warrant-holders, they come of acts on the do- the omission certain he be governor being, benefit; prejudiced not escheat to the time for his nor can any governor by grant thereof; they body of become vested whole the citi zens, subject disposition property commonwealth, as the of laws. decidedly prevention opinion, patents, We are of that the and certificates re- commonwealth, person claim- patents, cited in the are not conclusive this conditions, performed the patentees having the act of ing April 1792, under 3d of of them, prescribed by enjoined although they pursued on the form the land- have think, But we also that the circumstance of recital of such certificates will officers. nullify settlement, improvement and not, ipsofacto, patent, avoid the actual and proof. repeat out other We residence, pointed law, can be established must head, former, governed by what we asserted on the case-must be its- on land, each tract really existing, circumstances. Until the facts as to of peculiar own with of accurаcy, legal degree conclusion cannot drawn are ascertained jus. Ex oritur correctness. facto difficulty irresistibly impelled feel to mention which strikes- we ourselves 2. Here this; subject led forcibly. reflections on the us to ask ourselves minds Our our independent wise, just What would a and chancellor decree pillows. on our question objects juris Executory peculiar chancery ? are of question contracts on last part forms a of our specifically by chancery alone; equity can be diction, and enforced justice truly. late chief Dall. 213. says appeared chancellor, pleading proofs, had to such other If it individual, fully paid government by had for a tract been purchase-money 1792; difficulty danger the 3d that times of had April under the law of expended effect an im- money had intervened; that sums of been an, accomplished fully; been provement which had not means him part granting patent; mistake on of the state-officers unintentional grantee; he any species deception fraud or to that mistake led grant, confidence, that the and lulled into a conditions had been led into error he there- with, therefore, had remitted in his endeavors legally complied had circumstances, combined, equity think, that under these thus all would forfeiture, by protracting the limited rigid law interpose mitigate ground equity, political state- it not be an periods? And would additional posts- by a surrender the western country materially changed since nations, peace with the Indian hoth which of the United to the government measure, necessary in some less frontiers, immediate settlement of the rendered an than heretofore property lands; line must not submitted to us draw -the But it is these questions others, before temperate decisions whom be left to the cool us, on the matters before agitated. wager, We are confined to title formed on due given you dispassionate sentiments, our we have questions on both merely as com- judgment. best of our We interested reflection, according to the a due happiness citizens, safety involved administration mon whose per- peace tranquillity an ardent desire that profess feel laws. We of this most remote inhabitants commonwealth. served to the

27 41 v. he is and

time persists, to his go credit. abe Hence, there must for five at persistence least. *The to enter the land, warrant gave it, to and right to survey n *42l (cid:127)* make the settlement. But this forfeited, would be right under the again question agitated The same circuit court of United States, in April 1803, charge case Balfour’s Lessee Meade.1 The of Judge Washing jury ton to the was as follows: importance of this cause led J.—The the court to wink at some ir- Washington, bar, it at regularities argument protract which has to tended it to an length. Depending on the the state, unreasonable construction of laws of partic- and had, April 1792, 3d of ularly first, appearance on that of the it of a diffi- easy, very complicated and case. It is not at the reading long cult first statute, another, of one section bearings upon to discover the so as to obtain distinct view of legislature. meaning opinion and intention I now entertain was parted, open, however, we Saturday, (cid:127)formed on before as it to always such altera- argument and may produce. tions as ulterior reason and explain subject, The better to understand the necessary will be to take a view of sections of the act of the 3d .general April 1792,upon the different which this price turn. first (cid:127)cause must section reduces of all vacant not previously n settledor the limits improved purchase 1768, of the Indian made in and all pre- purchases, acres; cedent to 50s. 100 of the vacant lands within the 1784, lying purchase Allegheny Indian east of river Oonewango creek, and purchasers in granted the manner authorized former laws. The section for sale all the other lands of the state, lying second offers north and west of Ohio, Allegheny Oonewango, persons cultivate, improve (cid:127)the who will and settle done, be same, price per or cause at the 10s. hundred acres, to be located, 71. n surveyed remarked, and secured as directed this law. It is to be that all the above districts, lie in different and are at different prices. lands offered Title to any of them may acquired be except to all those lying north west of the Ohio, Allegheny Oonewango, warrant, without settlement. section, referring The third to all the application above authorizes to the sec- by any person having retary improved, of the land-office settled or or who was desi- plantation improve particularly described, rous to settle and for a warrant for exceeding of land not -quantity acres; which warrant is to authorize and n require surveyor-general surveyed, to cause the same and to make return it,of purchase-money fees grantee paying eighth of the office. The section, which place intimately notice in this because connected section, I with the third directs the survey application and mark the deputy-surveyor lines the tract survey, conceive, validity particular This I has no other than to furnish the settler. n description, accompany application which must at the land-office a warrant. The other section, amongst regulations, protects settler, fourth title of an actual the deputy-surveyor posterior warrant (cid:127)a entered with to such actual settlement. section, referring exclusively ninth to the lands north and west of the Ohio, Oonewango, declares, Allegheny warrant or survey lands within that n district title, the grantee has, prior unless date give of the warrant, made, or shall, caused to be within two made or after the date of it, make causeto settlement, by clearing, an actual fencing cultivating two acres acres, erecting hundred thereon a at least each house for the habitation man, family reside, residing, causing thereon for five following next his first long live, shall so settling same, default of such actual settlement and acquire settlers title other actual thereto.” case, as if Let now consider the law had stopped us A title tо here. the land Ohio, and west of the controversy lying north Allegheny Oonewango, iin could

14 Dall.363. OF THE UNITED STATES. v. if section, former of tbe in not exercised part This years. was right, meant to which protect, more. This nothing is the right saved, as the which *by persisting long prevention continues. ceases, But when the the ultimate condition of prevention settlement in no of acquired by settlement; money no other manner than actual sum could en- by title a a unless person application preceded to was actual settlement on. preceded by settlement, give title, or the warrant would not, so by question it were such thereafter. The unless followed settler, meaning an then what constitutes such within the intention of this- a title, in him an so as authorize the him inceptive granting vest to to of a possessio cabin, clearing ? not a the erection or of pedis warrant not cultivation but improvements, a field. These acts deserve the name not settlements. occupancy accompanied must with intention to and live There be an T>ond reside fide make it by tenant; place that of his to of his- land, either habitation, at the time he is if this- day, improving; not at some distant but for then, future, personal tenant, intention be either as his own residence or date; fixes the by the execution of that intention actual residence the commence- the; for improvements, nothing ment of the will stand settlement, previous calculation. house, clearing cultivating ground, all either The erection of a intention, done, them, may animo with which it was quo afford evidence of settle; settlement, unaccompanied by neither all will constitute resi- but nor person making them at the. Suppose, then, improvements made, declaring dence. convenience, temporary purposes for and not with a. they time that were intended settlement, meaning; settle could called an actual within the view to and reside this be Surely, against express- ? no. But such acts legislature though and intention of the settlement, follow, make a it does not that the- declarations animo will not quo declaration an intention to settle, for a without proposition will; converse an execution, will not constitute actual settlement.- actually carrying that intention into the; 1793, In he leaves apply plaintiff. do to the case principles How these stationed, officer, ;. he with a soldiers at and which was few fort which he was (for pens being covered, they not do not trees, down erects four or five cuts some five, days, having accomplished and in six or seven this cabins), deserve name of so, place Why of residence. did he retreat fort, to his former work, he into the returns existing completing the time these labors- danger hear of no precipitately? We engaged in them. What him. the time he was did not exist which inhabiting Except them ? the state of cabins, to cover proceeding there is of a. country, no evidence existed in that general hostility that, obvious, of this It is plaintiff. in the instance most flight, necessity particular he was, improve- to erect considered to be this wilderness what object his visit being, consequently,, a human fact, were, in uninhabitable they ;ments but was, besides, an present settlement. He officer intended for a have been not could cabin, at his service, he could not settle reside in that army, and whilst perfect short, In his whole tranquillity. had been in a state country although when a title ro. asserting his own afterwards; statements time conduct, both at that survey, all acceptance, and certificates of in his warrants lands, the recitals mean, Mistaking not to settle. he did irresistible, that proof afford that an im- respect, supposed, he done others have many law, as seems those not right lands. It is vesting equivalent was provement Crouse, even who> single witness, it proved nor is now, even pretended, contemplated a settlement. It has improvements, assisted persons to sit down for a moment require have meant asked, could the answer, no. a time- I At such savage enemy dangers from a encompassed lands enough found rash make settlements.. men would improbable, very it was COURT SUPREME a rea- As the law does require impossibilities, is still performed. *of the must be to make the after war allowed sonable time cessation time, is that reasonable because that We two years settlement. say, the contract, fixed which was predicated upon the time originally theidea that there was no obstacle. acquired, if men found yet no title could im- savage wilderness, might of a be called dangers brave hardy enough to boldness, promised reward, not for their men, they would also deserve but prudent for their settlement. intention in the make an plaintiff we have of an actual settle- The first evidence the de- 1796, long the actual bond settlement of ment, spring fide plaintiff I no credit to the notice from family, give fendant July 1795, accompanying so far from actual he since, in with ‘defendant which, however, Every- was never carried into execution. settlement of future speaks respect surveyed George to the 400 acres in the name said with of which I have thing surveys the name three other in the of Elizabeth Balfour, will d apply fortiori making privy ever even the of the cab- Balfour, &c., who, pretended, it is not to upon those a settlement lands. ins, contemplated or ever clear, proviso, plaintiff had at the -it is never made law, then, stopped the If n such him to a would entitle But he excuses himself from a settlement as warrant. law required, by danger any as the the to which urging made a settlement 'having such country exposed. in that have been relies on a residence would He attempting person any if declares, ninth section of which that such actual proviso to the settler,or shall, any any original succeeding warrant, by such force of States, making prevented United from actual set- arms of the enemies make therefrom, and shall in his endeavors to such actual tlement, or be driven then, case, aforesaid, in either he and his be entitled to have as heirs shall settiement lands, in manner if each been the same as actual settlement had and to hold the said country, has been given Evidence hostile state that and continued.” made 1793, 1794, 1795, and the danger to settlers would have been during the treaty at Fort on the signed August that Grenville was 3d of exposed. "Weknow year: 22d of December the same Meade although ratified the settled 1795, and proof it is not no even family, danger conclusive that there was November his time and’ rate, require preparation, it would some little for those who' any and at then, settlements, return to their and turned off, upon to cause driven had been tq plaintiff persevered had return and make such exertions whether question question jury, requires, I should leave the evi- as the law settlement to himself the benefit plaintiff, pro- heard. entitle they have dence incipient title, at other, had an some time or and this could have viso, should necessity settlement, preceding obliges him by actual to seek been created byor warrant. proviso, benefit must have say, that he had such an actual settlement as not mean to this section I do cabin, if he had built a give title; improve- for commenced his perfect requires, reside, as to afford evidence of a bond intention to in such manner had ment, fide labors, persevering, of his at all by enemy, stage proper at times forced off been safely when he return, might so, do he would afterwards, in endeavors have been plaintiff, But it incumbent on the if he himself by proviso. excuse saved correctly precedent, of what has been called condition performance bring proviso which fully fairly within the was for his benefit; this he has himself not done. supreme pleas court and the common of this state have been Decisions notice, purpose pointing peculiar of which I shall out bar, at the cited prevent present, from the and to distinguishes them mark which conclusions from impeach has said either to countenance or drawn from those decis* being what THE UNITED STATES. OF *45 v. enter it is the commonwealth alone can for the forfeit- said, *But that' no But if this is a (cid:127)ure, there is con- right private entry. vested, therefore, dition there can be no for- ever precedent, right feiture. The within two permission *only right given [*46 but this enter, surveying settling right purpose Coxe,1 Company feigned .ions. The cases I allude are The Holland issue unbury.2 at tried S which the claimed in those incipient plaintiffs title under causes were warrants incipient -authorized title in the case present third section law. by settlement, survey patent; settlement. The former this completed to precede explanation distinction, distinct warrant; and most important what acts will constitute an actual settler to whom warrant ascertain may issue, and title. what constitute actual settlement the foundation of a I have warrant, namely, 'before be an actual settler to demand one explained who has of an gone upon occupied present land with a bona intention resi- fide 4ence, although have been compelled pub- he should abandon settlement enemies, lic stages settlement; the first of his but actual intended section, '9th clearing, fencing cultivating ground consists in two acres least on thereon, acres, erecting man, each one fit the habitation and a hundred house following settling, long residence continued for five next his first if he shall so live. This kind of more name properly improvements, deserves the performed import. explain different acts clearly satisfactorily This will what ,at appeared absurdity first to be an which declares that settlement,” &c., such actual settler plain meaning is, occupied that if a has once land with an of residing, intention though any land, he neither nor fenced forced cleared off the enemies of he the improvements, before could make and continue thereon for years; title, had an having incipient necessity once shall be excused required, what the doing his law manner required; the warrant-holder, incipient put who likewise has an title, although he never his foot upon land, prevented by shall be cause from making same these improvements, &c., if, settler, he too shall required be excused as is also of the he persevered improvements, his endeavors make those &c. But what becomes such patent, fio can good title, quite before claim a or even a question, upon is another opinion. which I no give plaintiff’s surveys warrants, they As to the give cannot him a title. Not the surveys; they description 1st. are a Because mere land surveyor which the is make, eighth section to and the applicant for the warrant is directed authorized lodge the third section to in the he applies land-office the time for the warrant. merely demarcation, It is a special location the land intended to be appropriated, gives notice thereof, of the bounds that others able to make adjoining loca- tions, danger without not ; survey of interference such a this as is returnable so as to lay the foundation patent; of a 2d. is not It authorized It warrant; 3d. was not for settler; an actual you 4th. was not made authorized surveyor, if believe, evidence, was authority ante-dated, given the survey Steel after was returned. Not warrant; title, 1st. Because was not a warrant of but of ac- ceptance 2d. settlement, It is not improvement, founded on but and if it had recited the consideration to be settlement, actual recital fact, would have been false in produced (cid:127)and legal could consequence. valid erneat; As the effect of it close the was to doors the land-office further progress of plaintiff perfecting again title. of it dismissal opened door, question but open eject- still as to title is examination ment, if brought patent months, within six will issue to the party. successful 1 4 Dall.171. Ibid. 237 COURT SUPREME [Peb’j the date of the or of the close the two expired land is to be to other actual settlers *The granted of the war. C sections, 5th and 10th and means those term explained this and had their settlement. The com- on the land begun actually were who settlers, lands to actual there these unless was- could grant monwealth there cannot be actual with- *a entry, right private of the act These a. expressions imply complete out aсtual entry. 1794, the act the 22d of vol.. itself. By April as warrant of entry right obtained for lands. There can be 581, 636, unimproved no warrant 3, p. actual settlement. must be previous should be done on the act not necessary *It is #, J no title to be there is defeated. But commonwealth, because actual her settler is authorized act.. act, the act to do is bound she the land because was vacant. be a *By He cannot trespasser, theretofore act, certain holders warrants granted, 15th section state,, district vacant land in the them in any authorized to locate “ shall be under the same of such warrants regula- owners provided of warrants taken for lands restrictions, as other owners lying' tions creek are made sub- Conewango river and Allegheny north west make their are to settlement actthat two years ject by warrants, warrants more than of their although from the date two. can the act This be done old a. *passed. when by giving -* similar to that to this section which we contend construction ought- to the 9th. to be given side. The on the same Tilghman, treasury Pennsylvania W. was- of lands the sales between 1784 1792. utmost that overflowing by 1792, the sale of the lands under the act of x’eceivedfrom

has been including $500,000. tract called the triangle, There are persons contemplated by act. descriptions 1st. man could settlers and 2d. The but procure hardy who moneyed poor- a credit of ten settler, to have who was purchase-money. barrier. The state did not want money, Population, revenue,, settlement of the land The actual sine non object. qua This from the oontract- tenor of the itself, whole act appears *s9lJ from the circumstances and as well as state. general policy actual settler has different The term used in significations, be no there can personal act. x’esidence. means a is on An actual settler sometimes with an in- it means remain, tent fencing, clearing, sometimes build- cultivating, act of the 30th December 1786, residing years. By vol. ing declared, 488, it is be understood an actual,, p. resident a manifest intention of with it a personal, making place a and the means of abode, continued from supporting family, time to therefore, having failed to show a title sufficient plaintiff, to enable him to re action, unnecessary say thing in this is about cover defendant’s title, and. 1 ought to be for the defendant. your verdict jury found for defendant. 1 C. 109; v. v. also, Douglass, Huidekoper McLean, See 1 W. C. Id. 136. 32 OF THE UNITED STATES. service military tbe on tbe

time, unless enemy, going interrupted in tbe 8th Thus, the word -war.” during country tbe section, inception is in its It is used common acceptation. merely ,in completion section tbe title; but tbe settlement mentioned tbe 9th is kind of Tbe intended to more of title. 9th section was define wbat exactly a title. settlement ‍‌​‌‌​​‌​‌​​‌​‌‌‌‌​‌​​‌​​‌​‌​​‌​‌​​​‌‌​‌​‌‌‌‌‌‌‌‌‍vest of resi- then, residence, and no time There settlement without being, residence, if tbe there has not been such five except years, dence prescribed, Settlement, residence, has been no and if no no settlement. there therefore, includes both residence. improvement acres Tbe misfortune traсt of 400 settled. was

Every specifically was, They of tbe Holland undertook Company impossibility. default,” in in bad to settle tracts two Tbe words years. engaged tbe &c., show that settlement was tbe main It is object. improbable, actual set- intended should be to defeat tbe proviso totally great object continue for ; effect, tlement that would be its if tbe war should yet event. which, at tbe time of tbe years, passing very probable was ;” *Much reliance has been if on our words, tbe as placed yet, *- construction, them their full The settlement we allow effect. ; but, made if be tbe shall be proviso, two years says you prevented it within two until it be years, you accomplished, to tbe tbe land it bad made bold as been within tbe according two years a complete in time of war clause. enacting persisting gives than tbe title, tbe tbe terms in time of war better proviso gives purchaser i» to a tbe latter clause time of For enacting gives purchaser peace. land to settle and reside the former tbe with- five while gets obliged such condition. out any But, tbe those favor of who say they, operates a man driven has improving. Suppose, improved, construction, end of bis before tbe residence : their away years’ lose man done would bis while that of tbe nothing, would who tbe for it admit, We is not war saved. persistence required during efforts and tbe wbat idle impose question, per- would unavailing One decide ? would door to endless would sistence open litigation. jury tbe tbe Tbe is to another when war- begin one way contrary. persisting If be absurd means ceases. settlement only improvement, to a Tbe cannot and continued. word continued say, apply thing- done, There tbe reason for whieb, once for ever. same when done war, after tbe its existence. settlement Are in this 1st. endeav- arise ease. Ingersoll, reply. questions Three for actual settlement and in, act as substitute ors tbe persisted accepted by continued, endeavors be residence ? *2d. For those wbat must period ^ *- condition, tbe and amount so as operate dispensation incurred, is to take ad- 3d. If a has been such substitute ? forfeiture tbe settlers, it ? actual commonwealth vantage in endeavors as substitute 1st. Does tbe act contemplate persistence first to ascertain residence? necessary residence, both tbe settlement and words meaning improvement, are used and in tbe sense which they general import, appropriate 3 Cranch —3 Douglass. v.

Huidekoper the act of 1792. By improvement understood clearing, cultivating on lands building In previously it is unappropriated. degree, vari- infinitely from ous, of a tree awith to the blazing tomahawk highest degree cultivation. The first been favored improver, in generally Pennsylvania. act, has no present preference, certain except specified cases. and settlement are not Improvement convertible terms. There be im- provement, settlement, there cannot be settlement, without im- Settlement, in provement. the order of . things, subsequent improvement, and includes it. It a signifies place person lives, having an made improvement, with without his Whenever family. residence commences, the settlement is from the time that the computed improvement first tenanted. The act of of a assembly words adopts ascertained previously import. Warrant, improvement settlement were an survey, of, and inception to the gave warrantee, a defeasible title. The were not issue un patents til after five years’ when right complete indefeasible. warrant Payment title, defeasible purchase-money, survey, gave inchoate and This was, possessory. whatever was liable *right, J forfeiture with the terms of the by non-compliance act. Residence is a continued settlement. as described Improvement, settlement settlement, residence for five next first years were con following ditions not to a precedent, title, but to an absolute unless possessory, pre vention war should furnish an excuse. That improvement, settlement are used in the terms, act as successive and distinct residence evident from the act The 5th section itself. land settled and speaks improved; 7th, 9th, actual settlement and and the actual settle improvement; ment residence of actual settlement and continued. The settlement, such an as is described in the is to including improvement commence within from date of the two warrant. The residence years for five from the first years settling. Hence, is to commence residence is a continuation of it. not constituent it true, when what means settle- declaring by legislature, ment shall be made, have included residence of five but the years, absurdity in a settlement residence of five to be made including years, two have admitted an error in shows that their they evidently language. clear, It is what do mean they say, question what they did mean least words, ? To make the alteration possible say the future tense as to is to substitute express partici- meaning, “ reside,” instead of This removes all the difficulties ple residing.” the whole act. The sentence and throws light npon language, great then read shall vest title unless the thus : warrant warrant, shall, date of such make an grantee at least thereon, clearing, settlement fencing cultivating hundred, thereon a for the habitation of acres messuage erecting man, and shall thereon for the five next space following reside then, the If, word rejected first of the same.” “residing” settling reside,” *there is the act to nothing justify its substitute “shall *,.,,1 * includes There is residence. proposition years’ idea; can on the act which such an suggest another whole word totally repugnant supposition. there are many expressions contrary, STATES. THE UNITED OF ascertain the of the terms improve- thus Having meaning endeavored residence, let us consider ment, meaning settlement and proviso. has, of arms of the enemies of the contend, if the force We -withintwo been prevented in his that time after the date of his having during persisted ineffectual, make though (cid:127)endeavors to persistence, settlement and residence. as a substitute for actual .accеpted a that effect admit, it with adventurers would hardy We that hope was Erie, inter- .an from the Ohio to Lake and cut off the establishment reaching coursebetween Indians, the that the of assembly the northern and western at a time the law in was when Presi- question. Pennsylvania passed dent States was hold with treaty peace preparing Detroit; authorized the Indians, session, and in the same they at western aid and those who of a force to were strengthen exposed military (cid:127)employment that it the immediate (cid:127)on the frontiers. We encourage agree, men, no but that legislature required residence bold purchase- poor themselves the lands be- for ten from such placed upon money adventurers, a further To this description they gave settlements. gan all them not entered the books warrants security, protecting district, at time the settler fixed himself on the surveyor tenants 'From such as inclined pay money, operate placing land. bounties for such tenants land, settling, they required on the and giving settlers, the actual the great accomplishing with prompt co-operation undertaking. that the recollected, it who claimed Let be for, could tract, one the warrant-holder as as he many pay (cid:127)could hold but *names but matter different known to be perfectly only using *^L on each settler obliged place (cid:127)of warrantees form. from the date if there should be tract, within and make events, all ready, and at attempt, support peace, .settlers, continue. Thus the interest of both if the should it they war labor, to make money, with operators operators descriptions, to realize formed of effort for steady expectations joint barrier. new court, that, remind as the law of Here it not be improper may in tbat alien and hold land stood, might purchase then Pennsylvania the act not intended to said, It has been that give opportunity state. intended that should ; buy any not was certainly foreigners speculation of their means of We do wish land, to the extent payment. quantity but from the nature of the very property, to treat this technically; subject to enter law, has a right .and condition grantee expressed defence, take the suits for its or profits, maintain recovery upon heirs, it to transmit it, bind .alienate, by suffering judgments, mortgage to the conditions of original grant. subject only of the sec ; clause had take enacting there Suppose, of the holders be the condition itself, what would tion absolutely by enter, he was nay, ? might dated in 1'792 warrantee warrants T793 ; him nature of his enter, enemy prevents grant; public bound him; are unable to protect and the United States state the. becomes of the condition him, impossible, Jaches performance

35. SUPREME COURT y. act the public Would the common estate enemy. law say be lost ? Are not these conditions what the terms ? If law subsequent pre cedent, no interest could arise. The could exert no act warrantee owner until ship, Here, the ^conditions were all performed. performance- :Kgg-jJ depends and owner. upons being exclusively possessor In one word, is, sense of the all conditions are precedent; to be before ought the estate becomes absolute but those- performed, are termed must be before the can precedent performed enter estate refer recover law. Conditions to- subsequent cases where the take and may party immediately enjoy grant, per- form afterwards, meantime, title, having, qualified right possession. rule, Is it not a settled and reasonable that conditions tending to defeat an estate, once vested, shall be construed ? and qualified^ strictly also, that courts hold a will condition either precedent subsequent,, to the intent of according it, whatever be form of party creating words, and when the same either the one or the other,, words constitute to the nature of according the case? are to is a We there sub- show stitute for actual substitute performance what subject under the 2d inquiry head. considered a reasonable time after the legislature date- season, of the warrant, in which to the in a complete specified improvements A distant peace. wilderness to be be was to collected explored, provisions were, and transported; and where laborers clearing, building, cultivating scarce, were difficult and of Actual settlement within progress. slow two- years was of in order to obtain full title, unless indispensable necessity, pre- vented the enemies of the United States. The then offered itself question to the legislature, shall the continuance of the release war the condition and endeavors be to ? equivalent performance contend, *We is, that the of the that the war- principle *591J rantee circumstances, does what he to can, shall not be according injured of the in war, account nor be the acquisition of' thereby delayed his title. The of the lands, and the terms of fixed were price purchase, the basis of acres, dollars hundred with the condition peace. Twenty per settlement residence, and in a a full consideration time of was peace. could legislature to better terms in time of As war. the expect get price was to be same in the and the modification must be in war the- peace, terms of the condition and residence. If, with the same exact conditions of price, similar settlement and you residence, at an after an time, indefinite distance of war,, intervening the during whole of which a constant in endeavors you require persistence to make such settlement, effect, increase, in double or you, you multiply

the sum to be as the land; consideration of the and in paid addition the terms of original settlement and the use of you the- price, gain which, and the .money, barrier, that co-operation individuals forming was one of the act; of the loses great objects both inter- purchaser est of his and the use therefore, land. It is money impossible, .require after, endeavors the war, and during, accomplishment yet say,, does purchaser for land on account pay highеr price ,the war.

It becomes consider, important whether the endeavors to be were THE UNITED STATES. OF y. Douglass. told, time, ; have been for first we lately war (cid:127)persisted during war, means war, and after the it again that means desist persist during inhabitants to admitted, It that frontier of hardy oppose persist. consideration incursions of was

(cid:127)against savage leading enemy to settle be ; natural for them to wish legislature might was attempts *unreasonable, (cid:127)made to be the war. during acknowledged was L at the that the hazardous should be made experiment expense were, however, of success adventurers. event was doubtful: hopes millions acres. entertained. The of two law contemplated disposal What be to share in its was number of induced undertaking, persons might doubt, uncertain. But the of the act admit of no persisting words ene in a time of If the war. grantee ; in his endeavors surmount my, endeavors the obstacle the force of arms of which prevented namely, States, then, the enemies of the &o. time, 2d. What is which endeavors period during condition, to a

continued, order effect release of amount As from the date of warrant substitute two years performance if there had been no time in the settlement was endeavors, same period, we prevention, perseverance say, Because, war, a time of all : required was which absolute, at then have become estate would proviso, shall not (cid:127)common for the benefit the grantee, proviso, being Because, to him in a than if it had not been inserted : worse situation place us, to commence that we urged ought adopt principle forfeiture, force, in a than reasonable time after the removal worse Because, as it introduces infinite : taking confusion endless controversy nowhere possession, clearing, fencing, cultivating building, of the war warrantee, from the date required law two years rant, pos must relate to the act of maintaining persistence taking *Because, : session the law does not cases interruption provide L war, efforts for more than two require longer after- war, the end lengthening persistence last wards be inconsistent with the clause of proviso, which would because, if after had And absolute estates certain failed: giving persistance no man indefinite, had been construed to be of any prudence persistance a dol advanced ourselves, and no or have individual would among foreigner he idea, No man on that when could, conjecture might lar on those lands. be re ; a continue ten title; might country war get might years for a time or setttlements might stored to Indians stipulated events, in all these purchaser the United States prohibited by and labor. money’ would have lost a law, persist- in requiring from the common legislature departed An To a favorite point. For carry ence what ? purpose war. do they Isle to the Ohio. What of settlers from Presqu’ establishment exertions for if the title, ? An for this extra absolute requisition promise in his endeavors be ineffectual. But he is “persist two years frоm years two within as make such actual settlement aforesaidthat other time settlement, and no kind of No other the date of warrant. within settlement such actual make he could not persist prescribed. from the warrant, two date those two had years expired;, a and settlement made after the could not have availed. two years 3d. If the must be for more than it end ?' two when will persistence years, Where is the term at which the has shall said estate become If absolute ? must the end the five years, get possession, he further still and reside five be no go ? There can pretence per- because, five a there is no sisting years, without epoch five are to and there can be no settle- run; begin ment made *If no set- from the date of warrant. two years tlement within the the- no can ever arise years, respecting question *62] years. 4th. If the has law, different from the re- common any meaning force of arms means to enemy, specting public certainly impose him new and to an upon What was duty grantee, give equivalent. new ? Persistence for duty whether the was at or country peace ineffectual, war. ? What was Substitution of sin- equivalent though endeavors, cere for actual persistance settlement. What was the motive for this A common departure sanguine law hope removing- settlements, to a distance from our old enemy great by blocking- uj> entered. this the- pass act, they With construction of through easily state, and of the har- every proceeding grantees, perfectly monize. doubtful, But if and resort should be had to com- meaning mon law, such a construction estate,, would be made as confirm the might bond construction could quiet purchaser; possibly fide would adopted, which in favor of the repeal express stipulation as is contained in the last clause grantee, the proviso. th. incurred, If forfeiture has been or if title to the- reverted state, default can by whom be taken ? grantee, by advantage By individuals, state, or contend, method? what We the- state And only. rely we reason and upon general conven- principles; ience of the on the thing; and on the express provisions legislature, decisions of the state voice, a dissentient judges, without or expression aof doubt. If individual enter the tenant of the upon Holland whenever that Company, choose *the settlement say not com- in due time, pleted foot they may dispossessed land i -* have taken Numbers are up. them. strength law, general principle the commonwealth can take inquest office, ofor instruction. The title of the entitling, sovereign must on record. rule appear This is founded in sense and good propriety, is enforced, instance, this rule, further whoever comes into title, law, not be possession dispossessed process.. If individuals, uninformed under the influence of bias and passion, to de- cide the forfeiture, and to question enter on at their discretion,, stay before long they please, they apply so in suc- cession, the idea either of forfeiture failure in persistence endeav- settlе, ors to innumerable mischiefs and endless confusion will indeed ensue. legislature foresaw inconveniences great result from adventurer a constituting every needy judge meaning have, therefore, marked out mode in be take» advantage THE- UNITED STATES. OF that, in actual settle- in tbe default of of a default grantee, providing residence, to other warrants ment and commonwealth new may grant first commonwealth, therefore, satisfied, The is to be actual settlers. made, has and in the that that the default been second place, place, third an áctual settler as place, is such may purchase, applicant to enter. he can must issue to the before have applicant, any right warrant settlers, who By other actual meant persons terms legislature will under who settle; pur- to come persons were willing engagements or, settlement; language condition of chase subject “ and settle cultivate, the second section who will improve settled; or, cultivated, not same,” language improved who “ section, of the 3d desirous to settle and who improve.” * re Lewis, the same side. The does relate to not on man made If a sidence. A settlement and not continued. may has before he has and is driven off completed enemy, with; is residence, the residence dispensed finished five we years’ say, the set settlement; he is endeavors make persist only in his endeavors tlement is cannot be already required does therefore, make it. That relative proviso, persistence, him, as to has not to him who finished his proviso, settlement. apply from'his read that if such actual settler thus: driven had been the settlement he shall be entitled to hold the same manner construction, consequence Our not involve therefore, continued. does have supposed. which gentlemen noticed, There act has whieh is passage It this: in settlement. is residence is included strongly implies “ residence, it shall and And that in default of actual settlement other new to and for this to issue warrants commonwealth lawful thereof, for the said settlers, reciting original or any part made in warrants, have not been and that actual settlements and residence If settle- thereof, and so as shall be made.” often as defaults pursuance is ment the five then an actual settler includes years’ cultivating, building an fencing, clearing, is to If, the commonwealth default, on the land. residing be but one never can land such an actual settler there grant only, all the- default, the second complied because warrantee will have a full and is absolute title before requisites granted. warrant case, be would, in such words, made,” and so as often defaults shall be and nonsensical. nugatory follow, does not section; for it No can be drawn from the 15th argument words, construction, different that because one section requires particular a similar con- must have section, to a-different in another relative subject act fact, shows, very all struction. what we agree to its strict letter. drawn, and cannot be understood according inaccuratеly J., 27th, 1805, Marshall, Ch. delivered *Wednesday, February L of the court as :— opinion follows of Penn- court case, in the circuit which occurred questions out and on which of this court sylvania, opinion required, grow for the sale-of act act entitled passed state, «65 COURT SUPREME Douglass. v.

Huidekoper the vacant lands this The 9th within commonwealth.” section of that “ words, case inis these and be it further principally depends, enacted,” &c. be considered, to this questions relate to of particularly section; to construe will be to understand correctly, necessary clause, which of enacting states to be what is performed by purchaser a warrant, before the title to therein vest in him. the lands described Two classes of are The one has purchasers contemplated. per- already formed sale, condition of is every about to the consideration- pay ; the other instance, in the first and is money pays consideration-money, to afterwards are conditions. both described the same perform They sentence, from each an actual settlement is as required indispensable of the completion title. In declared, this actual that it settlement, it shall be describing of a case next warrant two within previously granted, years “ date warrant, of such at least two by clearing, fencing cultivating acres for hundred acres in one contained thereon survey, erecting or man, habitation of messuage causing residing, family reside thereon for the first of five next his of space following settling same, he or she shall so live.” long *The manifest a residence of impossibility completing years, to an two would lead space opinion, of the part to those relative who had description applied condition, performed before the ; and payment purchase-money not to those who were to it afterwards. But there are perform subsequent act parts construction, not admit which will and consequently, residence is condition from the settles under a required person who war- rant, as as from one himself to well who entitles settlement. warrant by The law requiring repugnant incompatible things, incapable a literal construction, and must sustain some receiving change language be rendered however, This small as as intelligible. change, ought pos- sible, and awith view to the sense of the as manifested them- legislature, selves. The the counsel reading, suggested by plaintiff, appears be most reasonable, and to comport best with language general section, and with the nature subject. by changing participle “ into the verb, future tense of the instead residing, causing “ reside thereon,” family reside,” &c. effect of this reading correction of will be which exists in language destroy repugnancy act stands, as it reconcile this im- sentence that which part follows, and which that in the mediately demonstrates view of absolutely legislature, thereon, settlement dis- residence consequent tinct condition the settlement to be made within the parts space from the date of in five warrant, residence from thе commencement of the settlement. This construction is the more because words necessary, very residence,” settlement and that residence is prove required the warrantee, are, also that and residence prove contemplation (cid:127)of the law, distinct In the nature and from the usual operations. things, words, are also To make a import ^settlement, distinct. (cid:127)* more five, residence than residence of five hundred requires OF THE STATES. UNITED

E805] and, of years; it is much more consequence, reasonable to understand the .legislature the residence for term, requiring addition to a settlement, n thanas it to be a of a declaring settlement. component part of the terms meaning settlement and understood, residence being courtwill to consider proceed That proviso. of the act treats of an .actual settler which term is intended (under makes well who (cid:127)his settlement the foundation of his claim to a aas warrantee who had made an actual settlement in performance of the conditions annexed to and of purchase), “any grantee original succeeding warrantwho must be considered as one contradistinguished had made an actual settlement. Persons circumstanced, thus distinctly in the same 'brought together sentence, and terms are used appropriate (cid:127)situation of each, but not to both. applicable Thus, the idea of an actual “ “ settler,” from an prevented actual settlement,” and after making being “ ” n driven therefrom,” in his make be ab- persisting it, endeavors would surd. To to each class of apply all of the would purchasers parts proviso, involve contradiction in terms. circumstances, Under such plain .natural mode of is, to construing distributively apply provisions description persons whom are singula reddendo adapted, “ The then singulis. proviso would read thus : Provided neverthe- always, less, that if such actual settler shall be settlement, driven from his force of arms of the enemies of the United States or in any grantee, n original warrant, shall succeeding force of arms the enemies of the United be prevented settlement, from such actual making in 'shall persist endeavors to make aforesaid, such actual settlement as n then,in case, either he and his heirs shall be entitled to hold ;said lands, in the *same manner as if the actual settlement had been L .made and continued. The are, two cases the actual settler, who has been his set- driven from tlement, warrantee, and the who has been from a settle- prevented making ment, but has in his persisted endeavors to make clear, one. is perfectly case, (cid:127)that in each the proviso substitutes settlement to be something made within two from the date warrant, of the residence (cid:127)to continue five from the commencement settlement, of the both of in which were required clause. What is enacting something? “ answers, that in the case proviso of an actual settler,” it is his being “ from driven his settlement force of arms of the enemies States,” and in case of a being having “ .-settled, it is in his endeаvors to persisting make such actual settlement.” case, In neither is residence, or in his at residence, endeavors re- persisting quired. Yet the had not clause, forgotten, enacting residence to be added to settlement; sentence, the same they say, “ that the who comes person land, within the shall hold the if as proviso .actual settlement had been made and continued.” contended, It is on the time part defendant, that as the during which shall continue is not persistence prescribed, person claiming land must until he shall have effected both his settlement and resi- persist dence, as clause of the act. That that the required by enacting pro- viso the time, with dispenses time, with the con- only which during for the expression, But the are not only inapt dition is to be words performed. it. intent; such an contradict they absolutely _ from nothing !!Tfthe be read so as to be intelligible,' requires proviso .j. J He is to- from his settlement. the actual settler has been driven words, to continue his residence, or, in other settle his endeavors persist has been from From the ment, but is to hold the land. warrantee who “ is to He persist no endeavors at residence required. making “to- endeavors,” in his not to make and to continue such in those And if he does make such actual as aforesaid.” persist “ made- land, had been endeavors, he is to hold the as the actual settlement make the and continued.” The of the defendant legisla construction would substance, that if the endeavoring ture warrantee persist say, hold it, until he he should does accomplish accomplish a.particular object, if he had it. But improbabil accomplished independent the condition- intention to the time which dispense only ity has been would be which language performed, expressed used, noticed, there are terms seem to restrict the time which which in his- in endeavors is required. warrantee persistence Now, endeavors to make such actual settlement as aforesaid.” aforesaid,” is an actual settlement actual settlement within two years be made the date of the warrant. As could within two only per it, to make could for that time. sistence continue endeavoring If, after actual settlement persisting being prevented endeavors, successful, those should be two years endeavors off, asked, be his- should be driven it is what he become an situation ? answer is one. plain By persisting, actual settler to actual settlers applies still, If, off, him. after the he is two should be driven protects of external violence with residence. protected. application dispenses so, The court feels itself bound *to because the contains say instead, substitute, which, a in such a state of be received things, of a of the conditions clause and of' ; performance required by enacting substitute, that residence'forms no part. a forms,

In of and has been with great variety great strength, argued,. act; that the settlement of the was the and that country great object the construction of defeat that That the exclusive- would plaintiff objeсt. an settlers, of act to lands to be the settlement of a object give country, settlers, be admitted but that an act to sell lands to must have for its-- exclusive the settlement of the cannot be so conceded. object readily country, settlements, In not attempting procure treasury certainly forgot- consulted, far those far the ten. How how one objects might other, inferred, from the in words which yielded only - intention had far the How legislative expressed. legislature may of the district in to have been supposed peopling question promoted settlements, residence on them by encouraging though subsequent be rendered should can be shown impracticable by foreign enemy, rate, their own At if the words, used language. legislature dispens- residence, it it,. with is not for the court to ing could intend say, they words, unless there were concomitant which should those expression, explain manner in a different from their ordinary import. THE OF UNITED STATES. 70' are other in of the construction to which There considerations favor the- is a contract; is inclined. This is a and state it- party, court although which construed those well-established according principles ought contracts state is the situation of who- regulate generally. to sell forth to the on he is his- holds conditions which willing world he *If couch his such ambiguous should property. propositions of understood terms, differently, consequence might made, and the he sales were to be would come- purchase-money paid, court, ill to insist a latent and obscure an into meaning, grace him him to and retain the purchase- back give property, permit All those and of fair which constitute- money. principles equity, dealing, that courts should lean such require the basis judicial proceedings, a construction. the court on the first ques- understood being opinion of the third no determination-

tions, has rendered a decision unnecessary, it has been made. respecting certified the circuit directed, court- It is opinion following Opinion. court, That it is the of this —1st. opinion Certificate the 3d act passed day under the Pennsylvania, lands 1792, an act for the sale of vacant within this D. entitled A. April, north of a tract land commonwealth,” the warrant lying grantee, creek, who, force the rivers Ohio Allegheny Conewango west States, from the enemies of United was prevented arms of settling- thereon from the 10th land, from of' residing said and improving the 1st said until January the date of the April in his endeavors to make settle- the said who, persisted during period from such actual settlement residence, is excused ment a title 9th section the ‍‌​‌‌​​‌​‌​​‌​‌‌‌‌​‌​​‌​​‌​‌​​‌​‌​​​‌‌​‌​‌‌‌‌‌‌‌‌‍said law vest prescribes clause enacting the said grantee. a tract of court, of this that warrant of land it is That the opinion 2d. the rivers Ohio and and west of Allegheny Conewango- north lying of an act of the 1793, under and virtue legisla- creek, year granted lands entitled act vacant selling of Pennsylvania, ture who, of arms of enemies of force commonwealth,” the- person, the said settling improving was *prevented p- *- until from the date of said thereon warrant land, residing who, the said 1796, but his- period, pеrsisted 1st of January vests a. make such settlement endeavors ceased, the said did although, prevention in the said fee-simple thereafter, clear, of two commence, fence and, space acres for hundred contained in acres least two cultivate erect thereon a for the habitation land, and messuage the said for survey thereon, a to reside reside, or cause family space man, same, the the said his first settling grantee being yet next following life.1 in full 1 establishing C. 258. Thus the in the cir W. C. tried was validity case subsequently Land in a of the title Holland resulted Company, these on principles, court cuit 4 Dall. the 392; in favor plaintiff. verdict COURT SUPREME '72 decision court in this case J. I concur given by Johnson, and commented but there was question suggested argument, me court, to to merit has not appears which noticed which ¡some consideration. court defendant, should the It the counsel for the adopt was inquired by n for an actual that is to be substituted two persistence principle ¡settlement partial prevention is to be effect what settle- good Is warrantee subjected necessity making of time ment, commence at point should the cease or prevention any what, limitation ? 'the or under any, of a statute true, It is that construction which pro- undoubtedly of its absurdities, or in direct provisions, duce violation own consequences It from their literal signification, to be avoided. were better not to depart idea so the nature than involve inconsistent with very consequences n me, But embarrassment will it does legislation. appear .attend the of this act the court adopted; construction which cause is not case duration existence of preventing partial that it is not excepted operation within view proviso; n absurd, the warrantee It would be enacting impose clause. upon months, in a the most inconven- few necessity performing perhaps, act to hold out ient season of condition which year, proposes too cause to him an *of prevented when years; indulgence -* the state bound to control, pro- court, I be of tect If such the case before the should him. were now opin- ion, that must for a decision. With resort to general regard we principles rule, it is a that obstructions conditions, well-known performance God, or the act of shall excuse interposed perform- public enemy, ance, so far as effect of such cause extends. preventing necessarily should, therefore, In that it cases of I of opinion, partial prevention, that he had be incumbent warrantee court upon satisfy far conditions so not nee- -complied imposed -essarily public enemy. that a of a deficiency single day, perhaps, appear singular, material an alteration in the or situation of warrantee. produce rights to make competent what Pennsylvania fully court subject; statutory thought provisions they proper no further effect of used words responsible express intent, than to sensible endeavor consistent give them, in case can occur. operation

Case Details

Case Name: Huidekoper's Lessee v. Douglass

Court Name: Supreme Court of the United States

Date Published: Feb 27, 1805

Citation: 7 U.S. 1

Court Abbreviation: SCOTUS