Supreme Court of the United States.

HUIDEKOPER'S LESSEE r. DOUGLASS.1

Under the act of Pennsylvania, of 3d April. 1792, for the sale of the vacant lands, &c., the grantee, by warrant of a tract of land, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land for the space of two years from the date of his warrant, but during that time persisted in his endeavors to make such settlement and improvement, is excused from making such actual settlement as is described in the ninth section of the act, and the warrant vests in such grantee a fee simple.

THIS

HIS was a case certified from the circuit court of the United States, for the district of Pennsylvania, in which the opinions of the judges of that court were opposed.

The action was an ejectment to try the title of the "Holland Company to a very large tract of land in Pennsylvania, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, purchased of that state under the act of assembly of the 3d of April, 1792, which act is as follows, viz. :

An act for the sale of the vacant lands within this
Commonwealth.

Whereas the most valuable lands within this commonwealth, included within the purchase made from the native Indians in the year one thousand seven hundred and sixty-eight, have been taken up, located, and appropria2*] ted *for the use of divers purchasers, at prices heretofore established by law, and those which remain unsold and unsettled, being in ferior in quality or situation, cannot be sold at the same prices: And whereas the prices fixed by law for other lands belonging to the commonwealth are found to be so high as to discourage actual settlers from purchasing and improving

the same:

four, and lying east of Alleghany river and Conewango creek, shall be reduced to the sum of five pounds for every hundred acres thereof; and the same shall and may be granted to any person or persons applying for the same at the price aforesaid, in the manner and form accustomed under the laws heretofore enacted and now in force.

SEC. II. And be it further enacted by the authority aforesaid, That from and after the passing of this act, all other lands belonging to this commonwealth, and within the jurisdiction thereof, and laying north and west of the rivers Ohio and Alleghany, and Conewango creek, excepting such parts thereof as heretofore have been, or hereafter shall be, appropriated to any public or charitable use, shall be, and are hereby, offered for sale to persons who will cultivate, improve and settle the same, or cause the same to be cultivated, improved and settled, at and for the price of seven pounds ten shillings for every hundred acres thereof, with an allowance of six per centum for roads and highways, to be located, surveyed and secured to such purchasers in the manner hereinafter mentioned.

authority aforesaid, That upon the application *SEC. III. And be it further enacted by the [*3 of any person who may have settled and improved, or is desirous to settle and improve, a plantation within the limits aforesaid, to the secretary of the land office, which application shall contain a particular description of the a warrant for any quantity of land within the lands applied for, there shall be granted to him said limits, not exceeding four hundred acres, requiring the surveyor general to cause the same to be surveyed for the use of the grantee, his heirs and assigns for ever, and make return thereof to the surveyor general's office, within the term of six months next following, the grantee paying the purchase money, and all the usual fees of the land office.

authority aforesaid, That the surveyor general SEC. IV. And be it further enacted by the SECTION I. Be it therefore enacted by the senshall, with the approbation of the governor, diate and house of representatives of the commonvide the lands thus offered for sale into proper wealth of Pennsylvania, in general assembly met, and convenient districts, in such manner as he and it is hereby enacted by the authority of the may think expedient, so that the boundaries of same, That from and after the passing of this each district, either natural or artificial, may be act, the price of all the vacant lands within known, and appoint one deputy surveyor for the limits of the purchase made of the Indians each district, who shall give bond and security, in the year one thousand seven hundred and as is customary with other deputy surveyors in sixty-eight, and all preceding purchases, exceptthis commonwealth, and shall reside within, or ing always such lands as have been previously as near as possible, to his respective district; and settled upon or improved, shall be reduced to every such deputy surveyor shall, within sixty the sum of fifty shillings for every hundred days next after his appointment, certify to the acres; and the price of vacant lands within the surveyor general, the county, township and limits of the purchase made of the Indians, in place, where such deputy surveyor shall keep the year one thousand seven hundred and eighty-rants, in order that all persons who may apply his office open, for the purpose of receiving war1.-Present, Marshall, Ch. J.; Cushing, Paterson, for lands as aforesaid, may be duly informed Washington and Johnson, Justices. thereof; and every deputy surveyor, who shall

general, plots of every survey which he shall have made in pursuance of any warrant, connected together in one general draft, so far as they may be contiguous to each other, with the courses and distances of each line, the quantity of land contained in each survey, and the name of the person for whom the same was surveyed; and every succeeding year he shall make a like return of the surveys made in the year preceding.

SEC. VIII. And be it further enacted by the authority aforesaid, That the deputy surveyor of the proper district shall, upon the application of any person who has made an actual settlement and improvement on lands, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, and, upon such person paying the legal fees, survey and mark out the lines of the tract of land to which such person may, by conforming to the provisions of this act, become entitled by virtue of such settlement and improvement: Provided, That he shall not survey more than four hundred acres for such person, and shall, in making such survey, conform himself to all the other regulations by this act prescribed.

receive any such warrant, shall make fair and clear entries thereof in a book, to be provided by him for that purpose, distinguishing therein the name of the person therein mentioned, the quantity of land, date thereof, and the day on which such deputy surveyor shall receive the same, which book shall be open at all seasonable hours to every applicant, who shall be entitled to copies of any entries therein, to be certified as such, and signed by the deputy surveyor, the party paying one-quarter of a dollar therefor. 4*] *SEC. V. And be it further enacted by the authority aforesaid, That the deputy surveyor shall, at the reasonable request and proper cost and charges of the respective grantees, in such warrants named, proceed to survey the lands in such warrants described, as nearly as may be, according to the respective priorities of their warrants; provided, that they shall not, by virtue of any warrant, survey any tract of land, that may have been actually settled and improved prior to the date of the entry of such warrant with the deputy surveyor of the district, except for the owner of such settlement and improvement; and having perfected such surveys, shall enter the same in a book, to be kept by the deputy surveyor, and to be called SEC. IX. And be it further enacted by the the survey book; and the same book shall re-authority aforesaid, That no warrant or survey, main in his office, liable to be inspected by any to be issued or made in pursuance of this act. person whatsoever, who shall demand to see the for lands lying north and west of the rivers same, upon the payment of eleven pence for Ohio and Alleghany, and Conewango creek, every search; and the deputy surveyor shall shall vest any title in or to the lands therein cause copies of any such survey to be made out, mentioned, unless the grantee has, prior to the and delivered to any person, upon the payment date of such warrant, made, or caused to be of one-quarter of a dollar for each copy. made, or shall, within the space of two years next after the date of the same, make, or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating, at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and *residing, or caus- [*6 ing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so often as defaults shall be made. for the time and in the manner aforesaid, which new grants shall be under and subject to all and every the regulations contained in this act. Provided always, nevertheless, That if any such actual settler, or any grantee, in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.

SEC. VI. And be it further enacted by the authority aforesaid, That in making any survey by any deputy surveyor, he shall not go out of his proper district to perform the same, and that every survey made by any deputy surveyor without his proper district shall be void and of non effect; and the surveyor general and his deputies, are hereby severally directed and enjoined to survey, or cause to be surveyed, the full amount of land contained and mention ed in any warrant, in one entire tract, if the same can be found, in such manner and form. as that such tract shall not contain in front on any navigable river or lake, more than one-half of the length or depth of such tract, and to conform the lines of every survey in such manner as to form the figure or plot thereof, as nearly as circumstances will admit, to an oblong, whose length shall not be greater than twice the breadth thereof; and in case any such survey should be found to contain a greater quantity of land, than is mentioned in the warrant on which it shall be made, so that such excess be not more than one-tenth of the number of acres mentioned in such warrant, besides the usual allowance for roads and highways, the return thereof shall, 5*] nevertheless, be admitted, under the warrant, provided the party procuring such return to be made, shall forthwith pay to the receiver general of the land office, the price or value of such excess or overplus land, at the same rate at which he paid for the land mentioned in the

warrant.

SEC. VII. And be it further enacted by the authority aforesaid, That every deputy surveyor to be appointed by virtue of this act, shall, within the month of February in the next year, make and return into the office of the surveyor

SEC. X. And be it further enacted by the authority aforesaid, That the lands actually settled and improved according to the provisions of this act, to whosesoever possession they may descend or come, shall be and remain hable and chargeable for the payment of the consideration or purchase money at the rate aforesaid, for

every hundred acres, and the interest thereon | United States, shall be taken and deemed, and accruing from the dates of such improvements; they are hereby declared to be, within the limits and if such actual settler, not being hindered as of the county of Alleghany. aforesaid, by death, or the enemies of the United States, shall neglect to apply for a warrant for the space of ten years after the time of passing this act, it shall and may be lawful to and for this commonwealth to grant the same lands, or any part thereof, to other, by warrants, reciting such defaults; and the grantees, complying with the regulations of this act, shall have, hold and enjoy, the same to them, their heirs and assigns; but no warrant shall be issued in pursuance of this act, until the purchase money shall be paid to the receiver general of the land office.

attain the second no means presented themselves so obviously as the sale of the vacant lands.

residence, vests any, and if any, what title in or to the said land, unless the said grantee shall, after the said prevention ceases, commence, and within the space of two years thereafter, Although the war was raging at the time clear, fence and cultivate at least two acres for when the act passed, yet negotiations were every hundred acres contained in his said sur-pending, and peace was expected. vey, erect thereon a messuage for the habitation The general provisions of the act, therefore, of man, and reside, or cause a family to reside, especially those which relate to settlement and thereon for the space of five years next follow-residence, are predicated upon a state of peace, ing his first settling the same, the said grantee while the legislature also took care to provide being yet in full life. for a state of war.

3d. Whether a grantee in such a warrant as aforesaid, who has failed to make such settlement as the enacting clause of the said ninth section requires, and who is not within the benefit of the proviso, has thereby forfeited his right and title to the said land, until the com10*] monwealth has taken advantage of the said forfeiture, so as to prevent the said grantee from recovering the possession of said land in ejectment against a person who at any time after two years from the time the prevention ceased, or at any subsequent period, has settled and improved the said land, and has ever since been in possession of the same.

Dallas, for the plaintiff, contended for three general propositions.

1. That a warrantee (meaning thereby a person claiming under a warrant from the commonwealth) who has been prevented, by force of arms of the enemies of the United States, from improving, settling and residing on the land, but has persisted in his endeavors to do so, during two years from the date of his war rant, is forever and totally released, by the operation of the proviso, from the obligation of making the improvement, settlement and residence described in the enacting clause of the ninth section of the law.

The extent of that provision is the principal subject of litigation.

Without resorting to the words, but considering the law as a contract, what are the motives and ideas which may be reasonably ascribed to the parties?

1st. As to the state.

1. The settlement might be prevented by two means; public calamity, or negligence in the grantee. For the one, it was just that the state should answer; for the other, the grantee. 2. It was unreasonable for the state to require the same from him who should be prevented, as from him who should not be prevented from making a settlement. A mere enlargement of time diminishes, but does not obviate the objection. It does not put both on an equal footing. The man who has spent years in fighting and toiling to obtain a settlement, is still to do just as much as the man who has staid at home by his fireside till war is over, and then purchases his warrant. The former has no credit for his toil and wounds. This construction is evidently contrary to the spirit of the act, which was to gain hardy adventurers, who [*12 should join their exertions to those of the state and of the United States, to subdue the Indians; for it totally destroys all motive for such exer2. If not for ever and totally excused under tions. The state, therefore, might say, and, the specified circumstances, yet the warrant without doubt, meant to say, to the war warvests in such warrantee and his heirs, a title to rantee, that a persistence in the endeavor to the land under one of three aspects; 1st. Pro- settle, during the period prescribed, shall be acvided, during and for a reasonable time after cepted in lieu of actual settlement. That the the period of prevention, he persists in his en- man who has actually accomplished the settledeavors to accomplish an improvement, settlement and residence in time of peace, and he ment and residence, although his endeavors should not be successful; 2d. Provided he accomplishes the settlement and improvement within two years, and the residence within five years, after the prevention by hostilities ceased; 3d. Provided he has accomplished the improvement, settlement and residence, at any time before the commonwealth has taken advantage of the forfeiture.

3. The inceptive title of the warrantee gives a right of possession which can only be defeated by an act of the commonwealth, taking advantage of a forfeiture for non-compliance with the terms of the grant.

1st point.

In order to understand the act of 1792, it will be necessary to take a view of the situation of 11*] the state of *Pennsylvania at that period. Her finances were embarrassed, and an Indian war existed on her frontiers. Hence she had two great objects in view, the protection of those frontiers, and the accession of wealth to her treasury. To accomplish the first, no means were so sure as to establish on the frontiers a firm, hardy, and vigilant population, bound by their dearest interests to watch and repel the predatory incursions of the Indians. And to

who shall have persisted in his endeavors to settle and reside for the stipulated time, during a state of war, but who has been prevented by the enemy from accomplishing his settlement. and residence, are equally meritorious, and shall be put on the same footing.

2d. As to the warrantee.

Would he purchase during the war, if he was liable to forfeit his warrant although he persists during the limited time, and if all his expenses. and dangers were to go for nothing, and if at the end of the war he would be in the same situation as if he had remained at home?

The situation of the state then called for money, population and improvement. The means were a sale of the land, subject to settlement, if not prevented by a public calamity. The words and spirit of the act are conformable to these ideas.

The title is, for the sale of vacant lands.

The preamble states, that the prices at which they have been heretofore held were found so high as to discourage actual settlers from purchasing and improving.

The second and third sections contain the offer of the lands for sale, and the ninth describes the terms.

The particular words of the proviso are im

On this overture, companies and individuals | his heirs shall be entitled to have and to hold became purchasers. Among the rest the Hol- the said lands, in the same manner as if the actland Company, in April, 1792, and August, ual settlement had been made and continued." 1793, purchased 1,162 tracts of 400 acres each, In each of these cases the condition is released. 13*] which, by losses upon resurveys, *and If the legislature meant any thing less, words bounties to actual settlers, are reduced to 776 were not wanting in which to express their tracts, which have cost the company 222,071 ideas, and here was an opportunity of using dollars and 10 cents for purchase money, and them. (up to the year 1802) 202,000 dollars in expenses, endeavors to settle, and actual improve-portant. ments. The Population Company also expended nearly the same amount. The consequence was, that the public treasury was supplied; a bank was established, which furnishes revenues adequate to the whole expenses of the government, so that no taxes have been since imposed; industry and improvements have been stimulated, and the state has advanced rapidly in wealth and prosperity.

The persistence and prevention of the Holland Company are admitted.

The treaty made with the Indians in 1795, is considered as the epoch from which the two and the five years mentioned in the ninth section begin to run. But there was still further prevention by distance, by the season, (for the treaty was ratified in the winter,) by intruders, (who were pushing in upon the lands under pretence that the warrants were forfeited by want of settlement within the two years,) and by the construction of the act given by the board of property.

How, then, are the terms of the contract to be expounded? Not by the words, (for they are inconclusive and repugnant,) but by the nature of the transaction.

By the third section, a fee simple is granted; but the ninth section annexes a condition precedent. The warrant shall not vest any title "unless," &c.

The nature of the transaction, however, gives a possessory title, and an usufructuary property, at least for the two and the five years, else the warrantee could not go and make a settlement. It is always spoken of in the act as a grant. It may be devised, sold, descend, be taken in execution, &c. By the 9th section, what is given can only be devested by default. The whole estate does not remain in the grantor until performance of the condition.

"If any grantee shall be prevented." This implies an attempt and failure. "And shall persist," implying still the want of success In his endeavors;" still holding up the idea that the thing is not accomplished; to make,' not until he make, not persist to make, but persist in his endeavors to make, implying a continued attempt, not a performance. "Shall be entitled to have and to hold, in the same manner as if." Here the words "as if," necessarily imply that the thing itself is not done. The first part of the section gives the lands, if the thing is done, but the proviso also gives it, in a certain case, if it be not done, in the same manner as if it had been done. They who contend that the persistence must continue until the object is accomplished, make the legislature speak this absurd language: persist until the [*15 settlement has been made, and you shall have the land in the same manner as if the settlement had been made. But we make them speak much more rationally. If you are prevented by the enemy from making the settlement, but persist in your endeavors for two years, you shall have the land in the same manner as if the settlement had been made. We will take your endeavors for success. If settlement and residence were necessary in all cases, the proviso is useless. If the legislature meant by the proviso only to extend the time, they have been very unfortunate in their language, for there is no expression which indicates such an idea, and it is contradicted by the preceding part of the section, by which the commonwealth reserve the right to grant new warrants as often as defaults shall be made for the time, and in the manner aforesaid. No time is expressed in the act but the two and the five years. If the time is to be enlarged, who shall say how long? There is no provision for trying by a jury the question, what is a reasonable time.

The act contemplates but two cases. An actual settlement within the time, or a prevention during the time by the act of God, or of the public enemy.

In both cases the title was to be absolute.

The same reason that releases the warrantee who dies, applies more strongly to the warrantee prevented by the enemy, and the tenth section puts them both on the same footing.

Let us consider what is required by the ninth section, and what is relinquished by the proviso.

14*] *But the settlement and residence for the time mentioned is not a sine qua non to vest an absolute title. There are cases within the ninth section, in which the title becomes absolute, although the residence shall not have been completed. The words of the act are, "reside thereon for the space of five years next following his first settling of the same, if he shall so long live." If the warrantee, having begun his settlement, should die before the expiration of the five years, his title is complete. So if he puts a family on the land to reside, and dies before the end of the term, and the family quits its residence before the expiration of the five years, the title is absolute. So if an actual settler shall by force of arms of the enemies of the United States be driven from his settlement. And so, (as we say,) “if any grantee" shall" by like force "be prevented from making an actual settlement," "and shall *There are also other absurdities in the [*16 persist in his endeavors to make such actual same section, equally glaring. Thus it is desettlement," during the time allowed for mak-clared that in default of such actual settlement, ing the same, that is, for two years, "he and the commonwealth may issue new warrants to

It requires, within two years, a settlement, by clearing two acres for every hundred, by erecting a habitation and by residing five years.

Here is evidently a confusion of terms, by requiring a settlement consisting of five years' residence, to be accomplished in two years.