Foxcroft v. Mallett
45 U.S. 353 (1846)

Annotate this Case

U.S. Supreme Court

Foxcroft v. Mallett, 45 U.S. 4 How. 353 353 (1846)

Foxcroft v. Mallett

45 U.S. (4 How.) 353

Syllabus

Where a township of land was granted to a college upon condition (among others) that the grantees should give security that they would place a certain number of settlers on the land within a certain time, the duty of placing settlers remained as a permanent charge upon the land, unless counteracted by express agreements and special provisions between some of the subsequent grantees.

The second grantee, to his deed to a third grantee for an undivided portion of the land, having "excepted and reserved certain lots," and conveyed the rest, "subject to the condition that the third grantee should perform his part of the settling duties in proportion," and also, "that from the portion conveyed a part should be taken, in the proportion which the part conveyed bore to the whole township," by this language limited the extent and nature of the grant.

When this third grantee mortgaged his interest, the portion of land destined for settlers did not pass by the mortgage, but when this portion was afterwards located according to law, a title accrued to the settler, paramount to a title held under a foreclosure of the mortgage.

Whether the clause in the original grant be construed as an exception or reservation, or as a condition, the result would be the same. The title to the settlers' lots did not vest in any of the persons through whom the grant passed, but remained as a charge upon the land, until the intentions of the legislature were carried out by an actual settlement.

By appropriating these lots to settlers, no part of the security provided by the mortgage is withdrawn, because the mortgage itself must have contemplated such an arrangement.

The mortgage being executed on the same day that the mortgagor received his title, and containing a reference to the deed to the mortgagor, both deeds may be considered parts of one transaction, and be construed together.

A decision of a state court upon the construction of a deed, as to matters and language belonging to the common law and not to any local statute, although entitled to high respect, is not conclusive upon this Court.

This was a writ of right sued out by David Mallett, an inhabitant of New Hampshire, demanding two lots of land situated in Lee, in the County of Penobscot, and State of Maine, being lots numbered eleven in the fourth range, and eleven in the fifth range, containing two hundred acres, more or less, in said Town of Lee.

As an illustration of the chain of title, on the part of both plaintiff and defendant, the reporter has prepared the two following diagrams, showing the title as exhibited upon the trial by the plaintiff and defendant respectively.

Page 45 U. S. 354

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Page 45 U. S. 355

On 19 February, 1805, the State of Massachusetts passed the following resolution.

"No. 1"

"Resolve on the Petition of the President and Trustees of Williams College, granting them a Township of Land, with a Proviso. February 19, 1805."

"The committee of both Houses, to whom was referred the petition of the President and Trustees of Williams College, praying the aid of government to enable them to build a chapel for the performance of divine service, and for keeping the College library and apparatus, having examined the origin, rise, and progress of that seminary, from its institution to the present time, together with the aid heretofore afforded by the government, and the existing state of its funds, beg leave to observe, that the funds granted by the original donor and the government have, in the opinion of the committee, been judiciously applied to the object of the institution, and with success exceeding the most sanguine expectations, and that the present state of the College affords a reasonable and pleasing expectation of its future extensive benefits to society, and that a chapel, for the purposes above mentioned, would effectually promote the same; and as the encouragement and grants of the government to that College have not been equal to those made to other seminaries in the Commonwealth, the committee ask leave to report the following resolve, which is submitted by Ezra Starkweather, per order."

"Resolved, for reasons set forth in the petition, that there be, and hereby is, granted one township of land, of the contents of six miles square, to be laid out and assigned from any of the unappropriated lands belonging to the Commonwealth in the District of Maine, excepting the ten townships lately purchased of the Penobscot Indians, the same to have vested in the President and Trustees of Williams College and their successors forever, for the use, benefit, and purpose of supporting the said College, to be by them holden in their corporate capacity, with full power and authority to settle, divide, and manage the same, or to sell, convey, and dispose thereof, in such way and manner as shall best promote the interest and welfare of said college; the same to be laid out under the direction of the committee for the sale of Eastern lands, at the expense of the said corporation, and a plan thereof to be lodged in the secretary's office."

"Provided the trustees of said college, or their assigns, shall cause to be settled fifteen families in said township within twelve years from the passing of this resolve, and also, that there be reserved in said township three lots, of three hundred and twenty acres each, for the following uses -- namely, one lot for the first

Page 45 U. S. 356

settled minister, one lot for the use of the ministry, and one lot for the use of schools, in said township."

And on 27 January, 1820, the following:

"No. 2."

"Resolved that the commissioners of the land office be, and they hereby are, authorized and empowered to satisfy a grant of a township of land of the contents of six miles square, made by a resolve of the nineteenth of February, eighteen hundred and five, to the President and Trustees of Williams College, by locating the same, and conveying the said corporation township number three, in the second north of Bingham's Penobscot purchase, the same being numbered four, as surveyed by Alexander Greenwood. Provided said grantees, or their assigns, shall first pay to said commissioners the expense of surveying and locating said township, and give security to the Commonwealth in a manner satisfactory to said commissioners, that they will, within one year from the passing of this resolve, cut out a road, two rods wide, from the termination of the road commonly called the St. John's Road (which has been opened, under the direction of said commissioners, from Penobscot River into township number two in the first range) to said township to be conveyed, and clear a traveled path therein of one rod in width; and that within two years they will clear a like road through said township, so to be conveyed, and make the necessary causeways and bridges thereon, all in a manner to be directed by said commissioners; and within three years will place on said township thirty families as settlers, of the description named in the act for promoting the sale and settlement of the public lands in the District of Maine; also reserving in said township the usual public lots."

On 15 February, 1820, the commissioners executed a deed to the College, in which they recite the preceding resolution and proceed thus:

"Now therefore, know ye that we, the undersigned, whose seals are hereunto affixed, appointed commissioners for promoting the sale and settlement of the public lands in the District of Maine, conformable to an act passed the fifteenth day of February, eighteen hundred and sixteen, by virtue of powers vested in the undersigned, and pursuant to the resolve of the twenty-seventh day of January, eighteen hundred and twenty, herein recited, do by these presents, in behalf of the Commonwealth aforesaid, assign, relinquish, and quitclaim to the President and Trustees of William's College, and their successors forever, one township of land, of the contents of six miles square, lying in the County of Penobscot, as the same was surveyed by Alexander Greenwood, in the year of

Page 45 U. S. 357

our Lord one thousand eight hundred and eleven, bounded and described as follows -- namely, southerly on township number three, in the first range; westerly on located land; northerly on unlocated land; and easterly on township numbered four, in the second range, containing twenty-three thousand and forty acres; conditioned, however, that the said grantees, their successors and assigns, shall lay out three lots of three hundred and twenty acres each, for public uses. One lot for the first settled minister, his heirs and assigns; one lot for the use of the ministry, and one lot for the use of schools, in said township."

"To have and to hold the aforegranted premises to the President and Trustees of Williams College, their successors and assigns, on the conditions aforesaid, forever. In witness whereof, we have hereunto set our hands and affixed our seals, this fifteenth day of February, in the year of our Lord one thousand eight hundred and twenty."

"EDWARD H. ROBBINS [L.S.]"

"LATHROP LEWIS [L.S.]"

"JOSEPH LEE [L.S.]"

"Signed, sealed, and delivered in presence of"

"SAM'L REDDINGTON"

"GEORGE W. COFFIN"

On the same day, namely 15 February, 1820, the treasurer of the College executed the following deed to Nathaniel Ingersoll.

"Know all men by these presents that I, Daniel Noble, of Williamstown, in the County of Berkshire and Commonwealth of Massachusetts, esquire, treasurer of the corporation of Williams College, for and in consideration of the sum of four thousand six hundred dollars, secured to be paid to said corporation by Nathaniel Ingersoll, of the Town of New Gloucester, in the County of Cumberland and Commonwealth aforesaid, have given, granted, sold, and conveyed, and by these presents, in behalf of said corporation, do give, grant, sell, and convey unto the said Nathaniel Ingersoll, a township of land lying in the County of Penobscot and Commonwealth aforesaid, and containing twenty-three thousand and forty acres, as the same was surveyed by Alexander Greenwood, in the year one thousand eight hundred and eleven, bounded and described as follows; namely, southerly on township number three in the first range; westerly by unlocated land; northerly by unlocated land; and easterly on township number four in the second range, the same being township number three in the second range of townships north of Bingham's Penobscot purchase, and numbered four by said Greenwood; conditioned, however, that the said Ingersoll, his heirs and assigns, shall lay out three lots of three hundred and twenty acres each, for public uses; one lot for

Page 45 U. S. 358

the first settled minister, his heirs and assigns; one lot for the use of the ministry; and one lot for the use of schools in said township. To have and to hold the aforegranted premises to the said Nathaniel Ingersoll, his heirs and assigns forever, on the condition aforesaid; and the said Daniel Noble, treasurer of the corporation of Williams College, covenants with the said Nathaniel Ingersoll, that he has good right to sell and convey the premises aforesaid, and that said corporation shall warrant and defend the same, on the condition aforesaid, to the said Ingersoll, his heirs and assigns forever, against the lawful claims and demands of all persons."

"In witness whereof I have hereunto set my hand and affixed the seal of the corporation of Williams College, this fifteenth day of February, in the year of our Lord one thousand eight hundred and twenty."

"DANIEL NOBLE [L.S.]"

"Signed, sealed, and delivered in presence of us -- the word 'each' being first interlined in the twenty-sixth line of the first page."

"LATHROP LEWIS."

"GEORGE W. COFFIN"

"Suffolk ss. Boston, 16 February, 1820"

"Then personally appeared the honorable Daniel Noble, in his said capacity as treasurer of said corporation, and freely and voluntarily subscribed his name and affixed the seal of said corporation as the act and deed of said corporation, and delivered the same before me."

"GEORGE W. COFFIN, Justice of the Peace"

This last deed, although executed in 1820, was not delivered to Ingersoll until June 5, 1827, being deposited, in the meantime, with the agent of the College, as an escrow.

On the same day, namely, 15 February, 1820, Ingersoll conveyed to William Hodgkins, one undivided forty-sixth part of the township, saving and reserving out of said forty-sixth part, so called, one forty-sixth part of the lands reserved in the grant of said township to the President and Trustees of Williams College, for public uses.

On 17 March, 1820, Ingersoll, with eight other persons, executed to the treasurer of Massachusetts a bond, in the penalty of three thousand dollars, with the following condition, namely:

"The condition of the above obligation is such that whereas the above Nathaniel Ingersoll, and others above named, have become the assignees of a township of land, being numbered three, in the second range of townships north of Bingham's Penobscot purchase, the same being numbered four, as surveyed by Alexander Greenwood, and the same that was conveyed by the commissioners of the land office, the fifteenth day of February last, to the President and Trustees of Williams College, conformable to a resolve,

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passed the twenty-seventh day of January, eighteen hundred and twenty, and as such have paid the expense of surveying and locating said township. If, therefore, the said Nathaniel Ingersoll, Roger Merrill, Jonathan Page, Thomas Merriman, Thomas Skofield, Jacob Randall, Simeon Tryon, Jacob Davis, and Hugh Nevens shall, within one year from the passing of said resolve, cut out a road, two rods wide, from the termination of the road commonly called the St. John's Road (which has been opened, under the direction of said commissioners, from Penobscot River into township number two in the first range) to said township, and clear a traveled path therein of one rod in width; and that within two years they will clear a like road through said township, and make the necessary causeways and bridges thereon, all in a manner to be directed by said commissioners, and within three years will place on said township thirty families, as settlers, of the description named in the act for promoting the sale and settlement of the public lands in the District of Maine, then this obligation to be null and void, otherwise to remain in full force."

On 16 May, 1821, Ingersoll conveyed to Eleazer Greeley one thousand acres of land, "in common and undivided, with the reservation of the public lands."

On 7 May, 1825, Hodgkins reconveyed the same land which Ingersoll had deeded to him to Ingersoll, and Samuel T. Mallett.

On 5 June, 1827, three several deeds were executed, and in order to enable himself to execute one of them, Ingersoll received the deed which had so long been kept as an escrow by the College, namely, the deed of 15 February, 1820, by which the College conveyed the entire township to Ingersoll. Being now in possession of his deed,

1. Ingersoll conveyed to Samuel T. Mallett

"six thousand acres of land, in common and undivided, in the township of land lying in the County of Penobscot, as the same township was surveyed by Alexander Greenwood, Esq., in the year 1811, the same being township numbered three in the second range of townships north of the Bingham Penobscot purchase, and numbered four by said Greenwood, being the same conveyed to me by the President and Trustees of Williams College, as described in their deed, dated February 15, 1820, and this day delivered to me, reference thereto being had; excepting and reserving the lots marked as settlers' lots on a plan of said town made by John Webber, and excepting also the lot on which I have improved, which are not to be subjected to a draft, subject, however, to the condition that the said Mallett shall perform his part of the settling duties in proportion to the land conveyed, and also that from said six thousand acres a part of the public lands reserved shall be taken in proportion as said six thousand acres bears to the whole township. "

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2. Greeley conveyed to the same Samuel T. Mallett

"all my right, title, and interest in and to one thousand acres of land, in No. 4, second range, north of Bingham's purchase, and east side of Penobscot River, in common and undivided, with the reservation of the public lands, being the same I purchased of Nathaniel Ingersoll, as per deed dated May 16, 1821."

3. Mallett, being in possession of these two branches of the entire title, mortgaged one of them (namely, the one which he had just received from Ingersoll) to the College, to secure the payment of certain notes to the College. As the whole case turned upon the construction of this mortgage, and what passed under it, the whole paper is inserted.

"Know all men by these presents, that I, Samuel T. Mallett, of Litchfield, in the county of Lincoln, yeoman, in consideration of the sum of three thousand dollars paid by the President and Trustees of Williams College (the receipt whereof I do hereby acknowledge), do hereby give, grant, bargain, sell, and convey unto the said President and Trustees of Williams College, and their successors, forever, six thousand acres of land, in common and undivided, in the township of land lying in the County of Penobscot, as the same township was surveyed by Alexander Greenwood, in the year 1811, the same being township numbered three in the second range north of the Bingham Penobscot purchase, and numbered four by said Greenwood; being the same this day conveyed to me by Nathaniel Ingersoll, as by his deed, reference thereto being had."

"To have and to hold the aforegranted and bargained premises, with all the privileges and appurtenances thereof, to the said President and Trustees, their successors and assigns, to their use and behoof forever. And I do covenant with the said President and Trustees, their successors and assigns, that I am lawfully seized in fee of the premises; that they are free of all encumbrances; that I have good right to sell and convey the same to the said President and Trustees, to hold as aforesaid, and that I will warrant and defend the same to the said President and Trustees, their successors and assigns forever against the lawful claims and demands of all persons."

"Provided, nevertheless, that if the said Mallett, his heirs, executors, or administrators, pay to the said President and Trustees, their successors, heirs, executors, administrators, or assigns, the sum of three thousand dollars, in equal annual payments, in one, two, three, and four years, with interest, annually, on the whole, from 1 January last past, as by notes dated May 28, 1827; then this deed, as also four certain notes of the above date, given by the said Mallett and Jonathan Hodgman, to the said President and Trustees, to pay the sum and interest at the times aforesaid, shall both be void; otherwise, shall remain in full force. "

Page 45 U. S. 361

"In witness whereof I, the said Mallett, have hereunto set my hand and seal, this 5 June, in the year of our Lord one thousand eight hundred and twenty-seven."

"SAMUEL T. MALLETT [L. S.]"

"Signed, sealed, and delivered in presence of NATH'L INGERSOLL"

On 6 February, 1828, Ingersoll conveyed to Mallett a certain piece or parcel of land situated in No. 3, in the County of Penobscot, being one-half of lot numbered eleven, in the fifth range, in common and undivided, being one of the settlers' lots, the half of said lot containing fifty acres, said land being north of Bingham's Penobscot purchase in the County of Penobscot.

On 16 April, 1828, a meeting of the proprietors was called, "To see what measures the said proprietors will adopt to divide and apportion said lands, and to act thereon as may be judged proper." After sundry proceedings and adjournments, the meeting voted, on 1 July, "That the proprietors will proceed to divide and apportion the lands reserved to be set off as public lots," and a committee was appointed to perform this duty. The report of the committee was adopted by the meeting. After setting off nine hundred and sixty acres as "ministerial lands," and some other proceedings, it was voted,

"To assign and set off twenty-seven lots as settlers' lots -- namely, to Nathaniel Ingersoll, thirteen lots, which he has sold to settlers, and on which improvements have been made, as so much towards his share. Also, to Samuel T. Mallett, fourteen lots, being lots which he has sold to settlers, as so much towards his share in said lands."

Amongst the lots thus assigned to Mallett were lots No. 11 in range 4, and No. 11 in range 5, being the two lots in controversy in the present case. The meeting then proceeded to make division by lot of the lands not reserved for public lands, and not reserved to be holden as tenants in common among the several proprietors, according to their several rights in said township, and not assigned to Nathaniel Ingersoll and Samuel T. Mallett.

On 12 August, 1829, Samuel Mallett conveyed to David Mallett, the plaintiff below, the two lots in question.

On 26 July, 1832, the notes to the College not being paid by Samuel Mallett, the College brought an action called a "plea of land," in the nature of an ejectment, to recover sixty-eight lots of one hundred acres each, which had been drawn to the share of said Mallett as above set forth, the action being for "six thousand acres in common and undivided."

At June term, 1837, the case came on for trial, and was left to a jury, who found a verdict for the plaintiffs, and the judgment of the court was,

"that the said President and Trustees of Williams College recover against the said Samuel T. Mallett their title and

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possession of and in the demanded premises, and that a writ of possession issue accordingly, unless the defendant, his heirs, executors, administrators, and assigns [pay] the sum of five thousand three hundred and five dollars and seventy-five cents, and interest, within two months, together with costs of suit, taxed at ninety-five dollars and thirteen cents."

Upon this judgment a writ of habere facias possessionem was issued, on 20 June, 1839.

Under this recovery, Foxcroft, the plaintiff in error and defendant below claimed. It is unnecessary to set out the mesne conveyances and partition by which his title to the lots in question was established.

The suit brought by David Mallett in the circuit court was a writ of right, which came on for trial in October, 1843, when the jury found a verdict for the plaintiff. The following bill of exceptions to a ruling of the court was taken on the part of Foxcroft, the defendant.

"DAVID MALLETT v. JOSEPH E. FOXCROFT."

"Be it remembered, that the aforesaid Mallett having, on the twenty-ninth day of August, in the year of our Lord one thousand eight hundred and thirty-nine, brought his writ of right, returnable to said circuit court, to be holden on the first day of October, then next, wherein the said David demands against the said Joseph two certain lots of land, with the appurtenances, situate in Lee, in said Maine district, being lots numbered eleven in the fourth range, and eleven in the fifth range, in said town of Lee; which two certain lots the said David claims to be the right and inheritance of him, the said David, and of which he alleges that he was seized in his demesne as of fee and right, within twenty years, and ought now to be in quiet possession thereof, but which the said Joseph unjustly withholds from him. And the said writ having been duly served and returned, when and where the same was returnable, and the action having been duly entered and continued, from term to term, to this term, and the said Joseph having appeared and pleaded, and thereby defended the right of the said David and his seizin, and put himself thereof on the country, and prayed recognition to be made whether he, the said Joseph, had not greater right to hold the tenements aforesaid, to him and his heirs, as tenants thereof, as he now holds the same, or the said David, as he has demanded the same in and by his said writ and declaration, and the plaintiff having joined the issue tendered, and the jury having been duly empanelled to try the same, the plaintiff, to prove the issue on his part, offered in evidence a deed from the Commonwealth of Massachusetts to Williams College, dated February 15, 1820, of a certain township of land, of which the demanded premises are a part, a copy of which deed is hereunto annexed,

Page 45 U. S. 363

marked A., makes part of this bill of exceptions. He next offered in evidence a deed from the same Williams College to Nathaniel Ingersoll, dated the same 15 February, 1820, of the same township, but which said deed was not delivered until June 5, 1827, the deed having been in the meantime deposited as an escrow with the agent of the College. He also offered in evidence a deed from the said Nathaniel Ingersoll to William Hodgkins, dated 15 February, 1820. Also, a deed from said Nathaniel Ingersoll to Eleazer Greeley, dated May 16, 1821. Also, a deed [from] said William Hodgkins to said Nathaniel Ingersoll and Samuel T. Mallett, dated May 7, 1825. Also a deed from said E. Greeley to same Samuel T. Mallett, dated June 5, 1827. Also a deed [from] said Nathaniel Ingersoll to said Samuel T. Mallett, February 6, 1828; copies of all which deeds are hereunto annexed and marked B, C, D, E, F, and G, make a part of this bill of exceptions."

"He then introduced the records of a meeting of the proprietors of the township, called and organized according to the laws of the State of Maine, for the purpose of making a partition of the lands in the township among the several owners &c. The meeting being holden on the first day of July, 1828, by adjournment from 16 April, 1828. Portions of the record, so far as they relate to the matter in controversy, were read; a copy of which, marked B, is hereunto annexed, and makes a part of this bill of exceptions. He also offered in evidence and read to the jury, a deed from said Samuel T. Mallett to David Mallett, the plaintiff, dated August 12, 1829, purporting to convey to the said David two certain lots, being the demanded premises, a copy of which is hereunto annexed, marked H, and makes a part of this bill of exceptions. And the defendant, to maintain the issue on his part, offered in evidence, and read to the jury, a resolve of the Commonwealth of Massachusetts, dated 19 February, 1805, and another resolve of the same Commonwealth, dated 27 January, 1820; copies of which said resolves are hereunto annexed, and marked No. 1 and No. 2, and make part of this bill of exceptions. Also the deed from the same Commonwealth to Williams College, and the deed from said College to said Nathaniel Ingersoll, herein before referred to, marked A and B, having been offered in evidence by the plaintiff. Also a bond from the said Nathaniel Ingersoll and others to the said Commonwealth, dated March 17, 1820, a copy of which is hereunto annexed as a part of this bill of exceptions, marked No. 3. Also a deed from Nathaniel Ingersoll aforesaid, dated 5 June, 1827, to Samuel T. Mallett aforesaid. Also a deed of mortgage from Samuel T. Mallett aforesaid to said Williams College, dated the same 5 June, 1827; copies of both which deeds are hereunto annexed, marked No. 4 and 5, and make a part of this bill of exceptions. Also the record of the writ and judgment for the foreclosure of said mortgage, by

Page 45 U. S. 364

the said Williams College, against the said Samuel T. Mallett, a copy of which is hereunto annexed, marked No. 6, and makes a part of this bill of exceptions. Also a deed from said Williams College to John Webber, dated May 11, 1835, assigning said mortgaged premises to him. Also a deed from John Webber to said defendant, dated 19 June, 1835, conveying one undivided half of said mortgaged premises to him, said defendant, copies of which two last-mentioned deeds are annexed, and make a part of this bill of exceptions, marked No. 7 and 8. Also the proceedings in partition, instituted by the said Webber and Foxcroft, and the record of the assignment and judgment thereon, in the Supreme Judicial Court of the State of Maine, being the highest court of record in said state, a copy of which proceedings and record is annexed, marked No. 9, makes a part of this bill of exceptions. Also a deed from said John Webber to said defendant, dated November 4, 1836, of the residue or remaining moiety of the mortgaged premises conveyed to said Webber by said Williams College; a copy of which deed is marked No. 10 and annexed hereto, and makes a part of this bill of exceptions."

"It was stated and admitted as a part of this cause that at the time said proprietors' meeting was held, Samuel Fessenden, the agent of Williams College, resided in Portland, the place of said meeting, but was not present at said meeting."

"Upon this evidence, the honorable justice who presided at said trial ruled that the mortgage deed offered in evidence by the defendant, given to the said trustees of Williams College, dated the fifth day of June, 1827, marked 5, does not comprehend and cover the two lots, 11th in the 4th range, and 11th in the 5th range, being the premises demanded. And the said honorable justice did then and there declare and deliver his opinion aforesaid, that the mortgage deed aforesaid does not comprehend and cover the two lots, namely, No. 11 in the 4th range, and No. 11 in the 5th range, being the premises demanded, to the jury aforesaid, and with that direction left the said cause to the jury, and the said jury then and there gave and returned the following verdict, to-wit:"

"The jury find that the said David Mallett hath greater right to hold the lands and tenements described in his writ in said suit, as he has demanded the same, than said Foxcroft, the tenant, has to hold the same."

"Whereupon the counsel of the defendant did, then and there, on behalf of the said defendant, except to the aforesaid opinion of said honorable justice, and insisted that said mortgage deed did comprehend and cover the said two lots No. 11 in the 4th range, and No. 11 in the 5th range, being the premises demanded. And inasmuch as the said several matters so produced and given in evidence on the part of said plaintiff and defendant, and by their counsel aforesaid insisted upon, do not appear by the record of the verdict aforesaid, the said counsel for said defendant

Page 45 U. S. 365

did then and there propose their aforesaid exception to the opinion of the said justice, and requested said justice to put his seal to this bill of exceptions, containing the several matters so produced and given in evidence, on the part of said defendant, as aforesaid; and thereupon the said honorable justice, at the request of said counsel of said defendant, did put his seal to this bill of exceptions, on the eighth day of October, in the year of our Lord one thousand eight hundred and forty-three."

"JOSEPH STORY"

"One of the Justices of the Supreme Court"

"of the United States"

"We, the undersigned, certify, that this bill of exceptions is satisfactory to us."

"FESSENDEN & DEBLOIS & FESSENDEN"

"For the defendant"

"WILLIS & FESSENDEN"

"For plaintiff"

Upon this bill of exceptions, the case came up to this Court.

Page 45 U. S. 370

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