HUIDEKOPER'S LESSEE v. DOUGLASS
4 U.S. 392 (1805)

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U.S. Supreme Court

HUIDEKOPER'S LESSEE v. DOUGLASS, 4 U.S. 392 (1805)

4 U.S. 392 (Dall.)

Huidekoper's Lessee
v.
Douglass.

Circuit Court, Pennsylvania District.

April Term, 1805

THIS was an ejectment brought for a tract of land, lying north and west of the rivers Ohio and Alleghany, and Conewango creek. The lessor of the plaintiff made title under the Holland company, to whom a patent was issued, upon a warrant and survey. The defendant claimed as an actual settler, under the act of the 3d of April 1792. A great many ejectments were depending upon the same facts and principles;1 and on the trial, of another ejectment, at a former term, WASHINGTON, Justice, had delivered a charge to the jury, coinciding, generally, with the construction given by the Supreme Court of Pennsylvania, to the act of April 1792, from which Judge PETERS dissented. It was, therefore, upon the recommendation of the Court, determined to submit the questions, upon which the opinions of the Judges were opposed, to the Supreme Court of the United States, under the provision made, in case of such a disagreement, by the act of the 29th of April 1802. 6 vol. 89. s. 6. The questions were, accordingly, stated, at the last October term, in the following form:

    '1st. Whether under the act of the legislature of Pennsylvania passed on the 3d day of April 1792, entitled 'an act for the sale of the vacant lands within this commonwealth:' the grantee by warrant of a tract of land lying 'north and west of the

    Page 4 U.S. 392, 393

    rivers Ohio and Alleghany, and Conewango week,' who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the 10th day of April 1793, the date of the said warrant, until the 1st day of January 1796, but who, during the said period, persisted in his endeavours to make such settlement and residence, is excused from making such actual settlement, as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee.

    '2d. Whether a warrant for a tract of land, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, granted in the year 1793, under, and by virtue of the act of the legislature of Pennsylvania, entitled 'An Act for the sale of vacant lands, within this commonwealth,' to a person, who by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the date of the said warrant, until the first day of January 1796, but who, during the said period, persisted in his endeavours to make such settlement and 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 clear, fence and cultivate, at least two acres contained in his said survey, erect thereon a messuage for the habitation of man, and reside or cause a family to reside thereon, for the space of five years next following his first settling the same, the said grantee being yet in full life.
    '3d. Whether a grantee in such 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 commonwealth 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.'

The questions were argued in the Supreme Court, at February term 1805, by E. Tilghman, Ingersoll, Lewis and Dallas, for the plaintiff; and by M'Kean (attorney general of Pennsylvania) and W. Tilghman, for the defendant.

The opinion of the Court was delivered by the Chief Justice, in the following manner.

MARSHALL, Chief Justice.

The questions which occurred in this case, in the Circuit Court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by [4 U.S. 392, 394]


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