28 F. Cas. 1155 | U.S. Circuit Court for the District of Vermont | 1827
When this
cause was before the court at the last October term [Case No. 16,919], it was decided that none of the breaches alleged in the scire fa-cias were well assigned, except that which averred a non-performance of the condition; that every grantee, his heirs or assigns, should plant and cultivate five acres of land within the term of five years from the making of the grant, for every fifty acres contained in his or their share or proportion of land in said township. The defendants had leave, however, to withdraw their demurrer as to this breach, ■and plead thereto. Several pleas have, accordingly, been interposed, upon some of which Issues in fact have been joined, and others have terminated in demurrers, either general ■or special.
We think the fourth plea contains allegations of facts which, in judgment of law, form a full and entire answer to the breach, and show that the plaintiffs cannot avail themselves of the alleged breach of the condition in the original grant. To this plea there is a general demurrer. The facts, therefore, set out in the plea are admitted as true. These facts are briefly, that until the 20th of October, in the year 1787, the land contained in said town was wholly unsettled and uncultivated. That by an act of the legislature of Vermont of that date, the selectmen of the several towns are authorized and directed to take the care and inspection of the glebe and society lands in their respective towns, and to lease the same until the end of the then sep-tenary. And that by an act passed on the 30th day of October, in the year 1794, the legislature did grant the lands which had been granted by the .British government to the Society for Propagating the Gospel in Foreign Parts, to the respective towns in which said lands lie, to their respective use and uses forever. And that in virtue of said act, the selectmen of the town of Berlin, on the 1st day of May, in the year 1795, took possession of the right of land in question, and soon after-wards did plant and cultivate five acres of said land for every fifty acres set off to the defendants, and did continue to improve and settle the same by additional cultivation. And that on the 1st day' of February, in the year 1823, and before the issuing of the plaintiffs’ scire facias, the town of Berlin surrendered the possession of the said proprietor’s share in the said town to the defendants.
Upon these facts thus disclosed by the plea, and admitted by the demurrer to be true, the questions which arise are: 1. Whether, admitting the condition never to have been performed, the plaintiffs can take advantage of the non-performance, or claim any forfeiture by reason thereof. 2. Whether, as the condition was performed before the issuing of the scire facias, the forfeiture is not thereby saved.
Under the first question there are several points of view in which the case may be considered. which present very serious, if not insuperable, objections to the claim of forfeiture set up by the plaintiffs. The record shows that the grant bears date in the year 1763, and the cultivation required by the condition was to be made within five years from the date of the grant, but was not, in point of fact, made until the year 1795. The grant was made by and under the authority of the British government, and all the right which the state pretends to claim, grows out of the consequences of the Revolution; and whatever right this may be, it was not acquired until long after the expiration of the five years from the date of the grant. The condition was, therefore, broken, and the forfeiture incurred, before the state could pretend to claim any in
But if it should be admitted that these principles do not apply to the case, and that the state of Vermont succeeded to all the rights of the crown, other obstacles growing out of the acts of the state itself are presented against the claim of forfeiture. By the act of the 30th of October. 1794, as set out in the plea, the legislature granted to the town of Berlin, forever, the use of this land for the benefit of the town. The state thereby parted with ali the interest it had in these lands, and is estopped thereby from claiming any right thereto,
[See note A at end of case.]
[See note B at end of case.]