Supreme Court of Pennsylvania.
September Term, 1802
ON the 2d of April 1802, an act of the general assembly was
passed, entitled 'An Act to settle the controversies arising from
contending claims to land, within that part of the territory of
this commonwealth north and west of the rivers Ohio and Alleghany,
and Conewango creek,' (5 State Laws, 153.) by which the Judges of
the Supreme Court were directed to devise an issue, for trying the
following questions, at Sunbury, in Northumberland county:
1st. Are warrants heretofore granted under the act of the 3d of
April 1792, valid and effectual in law against this commonwealth,
so as to bar this commonwealth from granting the same land to other
applicants under the act aforesaid, in cases where the warrantees
have not fully and fairly complied with the conditions of
settlement, improvement, and residence, required by the said act,
at any time before the date of such warrants respectively, or
within two years after?
2d. Are the titles that have issued from the land-office, under
the act aforesaid, whether by warrant or patent, good and effectual
in law against this commonwealth, or any person claiming under the
act aforesaid, in cases where such titles have issued on the
authority and have been grounded upon the certificates of two
justices of the peace, usually called prevention certificates,
without any other evidence being given of the nature and
circumstances of such prevention, whereby, as is alleged, the
conditions of settlement, improvement, and residence, required by
the said act, could not be complied with?
The judges, having devised and published the form of a feigned
issue, on a wager, to try these questions; having given public
Page 4 U.S.
237, 238
notice, that all parties interested in the issue would be heard
at the trial; and having settled and prescribed the other necessary
proceedings; three of them (YEATES, SMITH, and BRACKENRIDGE,
Justices) assembled at Sunbury, on the 25th of November 1802; when
a jury was impanneled, and the case argued, by the Attorney-General
(M'Kean) W. Tilghman, and Cooper, for the commonwealth, in the
negative of the propositions contained in the questions; but no
counsel appeared to argue, in the affirmative. [
Footnote 1] On the next day, the presiding Judge
delivered the following charge to the jury:
Page 4 U.S.
237, 239
YEATES, Justice. That the decision of the Court and Jury on the
present feigned issue should 'settle the controversies arising from
contending claims to lands north and west of the rivers Ohio and
Alleghany, and Conewango creek,' is an event devoutly to be wished
for by every good citizen. 'It is indispensably necessary that the
peace of that part of the state should be preserved, and complete
justice done to all parties interested, as effectually as
possible.' (Close of Preamble to the Act of 2d of April 1802, p.
155.) We have no hesitation in declaring, that we are not without
our fears, that the good intentions of the legislature, expressed
in the law under which we now sit, will not be effected. We hope we
shall be happy enough to acknowledge our mistake hereafter. It is
obvious that the validity of the claims of the warrantholders, as
well as of the actual settlers, must depend upon the true and
correct construction of the act of the 3d of April 1792, considered
as a solemn contract between the commonwealth the each individual.
The circumstances attendant on each particular case, may vary the
general legal conclusion in many instances. We proceed to the
discharge of the duties enjoined on us by the late act.
Page 4 U.S.
237, 240
The first question proposed to our consideration is as
follows:
Are warrants heretofore granted under the act of the 3d of April
1792, valid and effectual in law against this commonwealth, so as
to bar this commonwealth from granting the same land to other
applicants under the act aforesaid, in cases where the warrantees
have not fully and fairly complied with the conditions of
settlement, improvement, and residence, required by the said act,
at any time before the date of such warrants respectively, or
within two years after?
It well be proper here to observe, that on the motion for the
mandamus to the late secretary of the land-office, at the instance
of the Holland company; the members of this Court, after great
consideration of the subject, were divided in their opinions. The
Chief Justice seemed to be of opinion, that if the warrantee was
'by force of arms of the enemies of the United States, prevented
from making an actual settlement, as described in the act, or was
driven therefrom, and should persist in his endeavours to make such
actual settlement thereafter,' it would amount to a performance of
the condition in law. Two of us (YEATES and SMITH) thought, that in
all events, except the death of the party, the settlement and
residence contemplated by the act, should precede the vesting of
the complete and absolute estate, and that 'every warrant-holder
should cause a settlement to be made on his lands within two years
next after the date of the warrant, and a residence thereon for
five years next following the first settlement, on pain of
forfeiture, by a new warrant; but if, nevertheless, he should be
interrupted or obstructed by the force of the enemy from doing
those acts within the limited periods, and should afterwards
persevere in his efforts in a reasonable time after the removal of
such force, until these objects should be accomplished, no
advantage shall be taken of him, for the want of a successive
continuation of his settlement.' To this opinion Judge BRACKENRIDGE
subscribes.
It would ill become us to say, which of these constructions is
entitled to a preference. It is true, that in the preamble of the
act of the 2d of April 1802, (p. 154.) it is expressed, that 'it
appears from the act aforesaid, (3d of April 1792) that the
commonwealth regarded a full compliance with those conditions of
settlement, improvement, and residence, as an indispensable part of
the purchase, 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 of the act of
1792, extracted ex viceribus suis, independent of any legislative
exposition thereof. I adhere to the opinion which I formerly
delivered in Bank; yet, if a different interpretation of the law
shall be made by Courts of a competent jurisdiction in the dernier
resort, I shall be bound to acquiesce, though I may not be able to
change my sentiments. If the meaning of the first question
Page 4 U.S.
237, 241
be, are titles under warrants issued under the law of the 3d of
April 1792, for lands north and west of the rivers Ohio and
Alleghany, and Conewango creek, good and available against the
commonwealth, so as to bar the granting of the same land to other
applicants, where the warrantees have not fully and fairly complied
with the conditions of settlement, improvement, and residence,
required by the law, at any time before, or within two years after,
the dates of the respective warrants, in time of profound peace,
when they were not prevented from making such actual settlement by
force of arms of the enemies of the United States, or reasonable
and well-grounded fear of the enemies of the United States? The
answer is ready in the language of the acts before us, and can
admit of no hesitation. 'No warrant or survey for those lands shall
vest any title, unless the grantee has, prior to the date of such
warrant, made, or caused to be 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 , &c. and in
default thereof, it shall and may be lawful to and for the
commonwealth to issue new warrants to other actual settlers for the
said lands, or any part thereof, & c.' (Act of the 3d of April
1792, sec. 8.) For the commonwealth regarded a full compliance with
the conditions of settlement and residence as an indisputable part
of the purchase or consideration of the lands so granted.'
(Preamble to Act of 1802.) But if the true meaning of the question
be, Whether under all given, or supposed, circumstances of peace or
war, of times of perfect tranquillity, or imminent danger, such
warrants are not ipso facto void and dead in law, we are
constrained to say, that our minds refuse assent to the general
affirmative of the proposition. We will exemplify our ideas on this
subject. Put the case, that a warrant taken out early in 1792,
calls for an island, or describes certain land, with accuracy and
precision, by the course of waters, or other natural boundaries,
distant from any military post, and that the warrantee, after
evidencing the fullest intentions of making an actual settlement on
the lands applied for, by all the necessary preparation of
provisions, implements of husbandry, labourers, cattle, &c.
cannot, with any degree of personal safety, seat himself on the
lands within two years after the date of the warrant, and by reason
of the just terror of savage hostilities? Will not the proviso in
the 9th section of the act of the 3d of April 1792, excuse the
temporary non-performance of an act, rendered highly dangerous, if
not absolutely impracticable, by imperious circumstances, over
which he had no controul? Or: Suppose another warrant, depending,
in point of description, on other leading warrants, which the
district surveyor, either from the state of the country, the hurry
of the business of his office, or other causes, could not survey
until the two years were
Page 4 U.S.
237, 242
nearly expired, and the depredations of the Indians should
intervene for the residue of the term, will not this also suspend
the operation of the forfeiture? Nothing can be clearer to us, than
that the terms of the proviso embrace and aid such cases; and
independent of the strong expressions made use of, we should
require strong proof to satisfy our minds that the legislature
could possibly mean to make a wanton sacrifice of the lives of her
citizens. It is said in the books, that conditions rendered
impossible by the act of God, are void. Salk. 170. 2 Co. 79. b. Co.
Lit. 206. a. 290 b. 1 Roll. Abr. 449. l. 50. 1 Fonb. 199. But
conditions precedent must be strictly performed to make the estate
vest, and though become impossible, even by the act of God, the
estate will not vest; aliter of conditions subsequent. 12 Mod. 183.
Co. Lit. 218. a. 2 Vern. 339. 1 Ch. Ca. 129. 138. Salk: 231. 1
Vern. 183. 4 Mod. 66. We desire to be understood to mean, that the
'prevention by force of arms of the enemies of the United States,'
does not, in our idea, absolutely dispense with and annul the
conditions of actual settlement, improvement, and residence, but
that it suspends the forfeiture by protracting the limited periods.
Still the conditions must be performed cy pres, whenever the real
terror arising from the enemy has subsided, and he shall honestly
persist in his endeavours to make such actual settlement,
improvement, and residence, until the conditions are fairly and
fully complied with. Other instances may be supposed, wherein the
principles of prevention may effectually be applicable. If a
person, under the pretence of being an actual settler, shall seat
himself on lands, previously warranted and surveyed within the
period allowed, under a fair construction of the law, to the
warrantee, for the making his settlement, withhold the possession,
and obstruct him from making his settlement, he shall derive no
benefit from this unlawful act. If the party himself is the cause,
wherefore the condition cannot be performed, he shall never take
advantage. Co. Lit. 206. Doug. 661. 1 Roll. Abr. 454. pl. 8. Godb.
76. 5 Vin. 246. pl. 25. We trust that we have said enough to convey
our sentiments on the first point. Our answer to the question, as
proposed, is, that such warrants may or may not be valid and
effectual in law against the commonwealth, according to the several
times and existing facts accompanying such warrants. The result of
our opinion, founded on our best consideration of the matter is,
that every case must depend on, and be governed by, its own
peculiar circumstances. The second question for decision is, Are
the titles that have issued from the land-office under the act
aforesaid, whether by warrant or patent, good and effectual against
the commonwealth, or any person claiming under the act aforesaid,
in cases where
Page 4 U.S.
237, 243
such titles have issued on the authority, and have been grounded
on the certificates of two justices of the peace, usually called
prevention certificates, without any other evidence being given of
the nature and circumstances of such prevention, whereby, as is
alleged, the conditions of settlement, improvement, and residence,
required by the said act, could not be complied with? It was stated
in evidence on the motion for the mandamus, and proved on this
trial, that the board of property being desirous of settling a
formal mode of certificate, on which patents might issue for lands
north and west of the rivers Ohio and Alleghany, and Conewango
creek, required the opinion of Mr. Ingersoll, the then
attorney-general thereon; and on due consideration, a form was
afterwards adopted on the 21st of December 1797, which was ordered
to be published in the Pittsburgh gazette, and patents issued of
course, on the prescribed form being complied with. The received
opinion of the supreme executive magistrate, the attorney-general,
the board of property, and of a respectable part of the bar, (whose
sentiments on legal questions will always have great and deserved
weight) at that day, certainly was, that if a warrant-holder was
prevented by force of arms of the enemies of the United States from
making his actual settlement, within two years after the date of
his warrant, and afterwards persisted in his endeavours to make
such settlement, that the condition was extinguished and gone.
Persisting in endeavours, was construed to mean something;
attempts, essays, &c.; but that did not imply absolute success,
or accomplishment of the objects intended to be effected. By some
it was thought, that the endeavours were only to be commensurate as
to the time of making the actual settlement, and were tantamount,
and should avail the parties 'in the same manner as if the actual
settlements had been made and continued.' The decisions of the
Court in Morris's Lessee v. Neighman2 and others at Pittsburgh, May
1799, tended to make the former opinion questionable; and two of
the justices of the Supreme Court adopted a different doctrine, in
their judgment between the Holland company and Tench Cox. [
Footnote 3] In the argument in that
case, it was insisted by the counsel for the plaintiffs, that the
board of property in their resolves, and the governor by his
patent, represented the commonwealth pro hac vice; and that
interests vested under them, which could not afterwards be
defeated. We cannot subscribe hereto. If the conditions of
settlement, improvement, and residence, are redispensable at all
events; they become so by an act of the different branches of the
legislature. The governor who has a qualified negative in the
passing of laws,
Page 4 U.S.
237, 244
cannot dispense with their injunctions; and it cannot be said
that this case falls within the meaning of the 9th section of the
second article of the constitution. 'The governor shall have power
to remit fines and forfeitures, and to grant reprieves and pardons
except in case of impeachment.' It relates merely to penalties
consequent on public offences. Nor can it be pretended that the
board of property, by any act whatever of their own, can derogate
from the binding force of law. But the fact is, an intention of
dispensing with the law of 1792, cannot with any degree of justice
be ascribed to the governor, or board of property, for the time
being. They considered themselves in their different functions
virtually discharging their respective duties, in carrying the act
into execution, according to the general received opinion of the
day; they never intended to purge a forfeiture if it had really
accrued, nor to excuse the non- performance of a condition if it
had not been complied with; agreeably to the public will expressed
in a legislative contract. The rule of law is thus laid down in
England. A false or partial suggestion by the grantee of the king
to the king's prejudice, whereby he is deceived, will make the
grant of the king void. Hob. 229. Cro. E. 632. Rel. 48. 1 Co. 44.
a. 51. b. 3 Leon. 5. 2 Hawk. 398. Black. 226. But where the words
are the words of the king, and it appears that he has only mistaken
the law, there he shall not be said to be so deceived to the
avoidance of the grant. Per Sir Samuel Eyre, Just. Ld. Ray. 50. 6
Co. 55. b.-56 b. accord. But if any of the lands concerning which
the question arises, became forfeited by the omission of certain
acts enjoined on the warrant-holders, they do not escheat to the
governor for the time being, for his benefit, nor can he be
prejudiced as governor by any grant thereof, they become vested in
the whole body of the citizens, as the property of the
commonwealth, subject to the disposition of the laws. We are
decidedly of opinion, that the patents, and the prevention
certificates recited in the patents, are not conclusive evidence
against this commonwealth, or any person claiming under the act of
3d of April 1792, of the patentees having performed the conditions
enjoined on them, although they have pursued the form prescribed by
the land-officers. But we, also, think, that the circumstance of
recital of such certificates will not ipso facto avoid and nullify
the patent, if the actual settlement, improvement, and residence,
pointed out by the law, can be established by other proof. We must
repeat on this head, what we asserted on the former, that every
case must be governed by its own peculiar circumstances. Until the
facts really existing, as to each tract of land, are ascertained
with accuracy, the legal conclusion cannot be drawn with any degree
of correctness. Ex facto oritur jus. 2d. Here we feel ourselves
irresistibly impelled to mention a difficulty, which strikes our
minds forcibly. Our reflections on the
Page 4 U.S.
237, 245
subject have led us to ask ourselves this question on our
pillows: What would a wise, just, and independent, chancellor
decree on the last question? Executory contracts are the peculiar
objects of chancery jurisdiction, and can be specifically enforced
by chancery alone. Equity forms a part of our law, says the late
Chief Justice truly. 1 Dall. 213.
If it had appeared to such a chancellor, by the pleadings, or
other proofs, that the purchase money had been fully paid to the
government by the individual for a tract of land, under the law of
the 3d April 1792; that times of difficulty and danger had
intervened; that sums of money had been expended to effect an
actual settlement, improvement, and residence, which had not been
accomplished fully; that by means of an unintentional mistake, on
the part of the state-officers, in granting him his patent ( the
officers not led to that mistake by any species of fraud or
deception on the part of the grantee) he had been led into an
error, and lulled into a confidence, that the conditions of the
grant had been legally complied with, and, therefore, he had
remitted in his endeavours therein: Would not he think, that under
all these circumstances, thus combined, equity should interpose and
mitigate the rigid law of forfeiture, by protracting the limited
periods? And would it not be an additional ground of equity, that
the political state of the country has materially changed since
1792, by a surrender of the western posts to the government of the
United States, and peace with the Indian nations, both which render
an immediate settlement of the frontiers, in some measure, less
necessary than heretofore?
But it is not submitted to us to draw the line of property to
these lands; they must be left to the cool and temperate decisions
of others, before whom the questions of title may be agitated: We
are confined to the wager on the matters before us; and on both
questions we have given you our dispassionate sentiments, formed on
due reflection, according to the best of our judgment. We are
interested merely as common citizens, whose safety and happiness is
involved in a due administration of the laws. We profess, and feel,
an ardent desire, that peace and tranquillity should be preserved,
to the most remote inhabitants of this commonwealth.
The jury found a general verdict in favour of the
attorney-general, on the feigned issue; and judgment was rendered
in these words: 'Whereupon it is considered by the Court here, that
the said attorney-general do recover of the said grantees, his
damages, costs, and charges, aforesaid, amounting in the whole to
two hundred dollars and six cents, and the Court accordingly render
judgment thereon for the plaintiff, subject to the proviso in the
9th section of the act of assembly, passed the third day of April
1792.'
Footnotes
Footnote 1 The reasons, for
not embracing this opportunity to discuss the subject, are assigned
by the counsel of the Holland company, in a letter addressed to the
Judges of the Supreme Court: 'Gentlemen. 'Having attentively
considered the suggestions which were made yesterday, during the
conference at the chambers of the Chief Justice, on the subject of
the act of the general assembly, passed at the last session, with a
view to settle the controversies arising from contending claims to
lands north and west of the rivers Ohio and Alleghany, and
Conewango creek, we beg leave briefly to submit the result, as a
justification for the advice that will be given to our clients.
'1st. Although the Holland company
and their counsel cannot approve the terms of the preamble of the
act, by which the legislature has undertaken to declare the meaning
and construction of the original contract (the very point in
controversy) and though they cannot admit the right or propriety of
dictating a new, and, perhaps, unconstitutional mode, of settling a
judicial question, without the assent of all the parties in
interest; yet they feel the importance of an early decision, and
would cheerfully concur in any form of proceeding, by which the
merits of the case could be fully and fairly investigated and
decided.
'2d. The merits of the case on the
part of the Holland company, as disclosed to the Supreme Court on
the motion for a mandamus, and as presented to the legislature,
evidently involve the following considerations: 1st. Whether the
company have complied with the condition of the 9th section of the
act of April 1792? 2d. Whether the reasons assigned for a
non-compliance with the condition, bring their case within the
proviso? 3d. Whether the proviso operates upon cases that are
brought within its terms, to discharge the condition entirely, or
only to enlarge the time for performing it? 4th. Whether the
company have so persisted in their endeavours to perform the
condition, as to be still within the benefit of the proviso? And,
5th. Whether the government, by prescribing the evidence, on which
patents had actually issued, in cases brought within the proviso,
could now take advantage of the forfeiture, for a supposed
non-compliance with the original condition?
'3d. But the questions which the
legislature has proposed are the following: 1st. Are warrants
heretofore granted under the act of the 3d day of April 1792, valid
and effectual in law against this commonwealth, so as to bar this
commonwealth from granting the same land to other applicants under
the act aforesaid, in cases where the warrantees have not fully and
fairly complied with the conditions of settlement, improvement, and
residence, required by the said act, at any time before the date of
such warrants respectively, or within two years after? 2d. Are the
titles that have issued from the land-office under the act
aforesaid, whether by warrant or patent, good and effectual in law
against this commonwealth, or any person claiming under the act
aforesaid, in cases where such titles have issued on the authority,
and have been grounded upon the certificates of two justices of the
peace, usually called 'prevention certificates,' without any other
evidence being given of the nature, and circumstances of such
prevention, whereby, as is alleged, the conditions of settlement,
improvement, and residence, required by the said act, could not be
complied with? These questions, in our opinion, exclude an
investigation and decision upon any other point than the following:
1st. Whether, if the Holland company have not performed the
condition, on which the warrants originally issued, within two
years,
though the residence could not be completed till the expiration
of five years, the state is barred from granting the same lands to
other applicants? and, 2d. Whether patents having issued on the
evidence of prevention certificates alone, they are not void, so as
to authorise the state to sell the same land to other
purchasers?
'4th. On the first of these points,
we observe, that it has never been contended, that the Holland
company have performed the condition within two years; but only,
that the condition was discharged, or suspended, by the operation
of the proviso, on the facts of their case; particularly the fact
that an Indian war existed for several years, beyond the term of
two years specified in the act of assembly. And on the second
point, it is sufficient to say, that although the prevention
certificate was the evidence prescribed by the public officers, and
ought, therefore, to be binding on the government, yet that even
waiving that objection, the patentees will be deprived of their
land, when other satisfactory and legal evidence was, and is, in
their power, to prove the circumstances which entitled them to
patents. 'Without recurring to the many other obvious objections to
the form and provisions of the act of assembly, we are confident
that the view which has been offered upon the subject, will justify
our advising the Holland company to decline becoming a party to the
suit proposed to be instituted; since, we repeat, a decision on the
two abstract questions proposed by the legislature, would still
leave untouched and undecided, the great and essential part of the
controversy. (Signed) 'J. INGERSOLL, 'W. LEWIS, 'A. J. DALLAS
'Philadelphia, June 24, 1802.'-
Footnote 2 See ante. p.
209.
Footnote 3 See ante. p.
170.
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