Huidekoper's Lessee v. Douglass
7 U.S. 1

Annotate this Case

U.S. Supreme Court

Huidekoper's Lessee v. Douglass, 7 U.S. 3 Cranch 1 1 (1805)

Huidekoper's Lessee v. Douglass

7 U.S. (3 Cranch) 1

ON CERTIFICATE OF DIVISION OF OPINION AMONG THE JUDGES OF THE

CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF PENNSYLVANIA

Syllabus

Under the act of the Legislature of Pennsylvania of 3 April 1792, entitled "An act for the sale of vacant land within the commonwealth," 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 endeavors to make such settlement, is excused from making such actual settlement as is described in the ninth section of the article, and the warrant vests in such grantee a fee simple absolutely and freed from the condition of settlement.

This is a contract; and although a state is a party, it ought to be construed according to those well established principles which regulate contracts generally.

The state is in the situation of a person who has held forth to the world the conditions on which he is willing to sell his property. If he should couch his propositions in such ambiguous terms as that they might be understood differently, in consequence of which sales were made and the purchase money paid, he would come with an ill grace into court to insist on a latent and obscure meaning which would give him back his property and permit him to retain the purchase money. All those principles of equity and of fair dealing which constitute the basis of judicial proceedings require that courts should lean against such a construction.

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 3 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 1768, have been taken up, located, and appropriated

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for the use of divers purchasers at prices heretofore established by law, and those which remain unsold and unsettled, being inferior 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,"

Section I. Be it therefore enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in general assembly met, and it is hereby enacted by the authority of the same, that from and after the passing of this act, the price of all the vacant lands within the limits of the purchase made of the Indians in the year 1768, and all preceding purchases, excepting always such lands as have been previously settled upon or improved, shall be reduced to the sum of fifty shillings for every hundred acres, and the price of vacant lands, within the limits of the purchase made of the Indians, in the year 1784, 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 percentum for roads and highways, to be located, surveyed, and secured to such purchasers in the manner herein after mentioned. "

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Sec. III. And be it further enacted by the authority aforesaid that upon the application 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 lands applied for, there shall be granted to him a warrant for any quantity of land within the 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, forever, 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.

"Sec. IV. And be it further enacted by the authority aforesaid that the surveyor general shall, with the approbation of the governor, divide the lands thus offered for sale into proper and convenient districts in such manner as he may think expedient, so that the boundaries of each district, either natural or artificial, may be known, and appoint one deputy surveyor for each district, who shall give bond and security, as is customary with other deputy surveyors in this Commonwealth, and shall reside within or as near as possible to his respective district, and every such deputy surveyor shall, within sixty days next after his appointment, certify to the surveyor general, the county, township, and place where such deputy surveyor shall keep his office open for the purpose of receiving warrants in order that all persons who may apply for lands as aforesaid may be duly informed thereof, and every deputy surveyor who shall 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. "

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"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 the survey book, and the same book shall remain in his office, liable to be inspected by any person whatsoever who shall demand to see the same, upon the payment of eleven pence for every search, and the deputy surveyor shall cause copies of any such survey to be made out and delivered to any person upon the payment of one quarter of a dollar for each copy."

"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 no 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 mentioned 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 nevertheless be

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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 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 400 acres for such person, and shall, in making such survey, conform himself to all the other regulations by this act prescribed."

"Sec. IX. And be it further enacted by the authority aforesaid that no warrant or survey to be issued or made in pursuance of this act for lands lying north and west of the Rivers Ohio and Alleghany and Conewango Creek shall vest any title in or to the lands therein mentioned 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, 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

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residing or causing 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. 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 liable and chargeable for the payment of the consideration or purchase money at the rate aforesaid for every hundred acres, and the interest thereon accruing from the dates of such improvements, and if such actual settler, not being hindered as 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 others 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."

"Sec. XI. And be it further enacted by the authority aforesaid that when any caveat is determined by the

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Board of Property in manner heretofore used in this Commonwealth, the patent shall nevertheless be stayed for the term of six months, within which time the party against whom the determination of the Board is may enter his suit at common law, but not afterwards, and the party in whose favor the determination of the board is shall be deemed and taken to be in possession, to all the intents and purposes of trying the title, although the other party should be in actual possession, which supposed possession, shall nevertheless have no effect upon the title; at the end of which term of six months aforesaid, if no suit is entered, a patent shall issue according to the determination of the board upon the applicant producing a certificate of the prothonotary of the proper county that no suit is commenced, or if a suit is entered, a patent shall, at the determination of such suit, issue, in common form, to that party in whom the title is found by law, and in both cases the patent shall be and remain a full and perfect title to the lands against all parties and privies to the said caveat or suit, saving, nevertheless, to infants, femes coverts, persons beyond sea, non compos mentis, and others under disabilities their respective rights until twelve months after such disabilities are removed."

"Sec. XII. And be it further enacted by the authority aforesaid that no direct taxes shall be levied, assessed, or collected for the use of this Commonwealth upon or from any of the lands or tenements lying north or west of the purchase made of the Indians in the year 1768 or the personal estate found thereupon for the full space or term of ten years from and after the passing of this act."

"Sec. XIII. And be it further enacted by the authority aforesaid that the following tracts of land shall be reserved for the use of the Commonwealth -- that is to say, at Presqu'isle, formed by Lake Erie, the island or peninsula which forms the harbor, and a tract extending eight miles along the shore of the lake and three miles in breadth, so as to include the tract already surveyed, by virtue of a resolution of the general assembly, and the whole of the harbor formed by the said Presqu'isle, at the mouth of Harbor Creek, which empties into

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Lake Erie, and along the shore of the lake, on both sides of said creek, two thousand said acres."

"Sec. XIV. And be it further enacted by the authority aforesaid that all the lands within the triangle on Lake Erie purchased from the United States shall be taken and deemed, and they are hereby declared to be, within the limits of the County of Alleghany."

"Sec. XV. And be it further enacted by the authority aforesaid that it shall and may be lawful to and for the holder or holders of any unsatisfied warrant and warrants heretofore issued for lands agreeably to the seventh section of the act, entitled, "An act to alter and amend an act of assembly entitled An act for opening the land Office, for granting and disposing of the unappropriated lands within this state,'" passed on 21 December in the year 1784, to locate the quantity of land for which such unsatisfied warrant and warrants was and were granted in any district of vacant and unappropriated land within this commonwealth, provided the owner or owners of such unsatisfied warrants shall be under the same regulations and restrictions as other owners of warrants taken for lands lying north and west of the Alleghany River and Conewango Creek are made subject by this act, the said recited act, or any other act or acts of the general assembly, to the contrary thereof in anywise notwithstanding."

"WILLIAM BINGHAM"

"Speaker of the House of Representatives"

"SAMUEL POWELL"

"Speaker of the Senate"

"Approved, April 3, 1792"

"THOMAS MIFFLIN"

"Governor of the Commonwealth of Pennsylvania"

The points upon which the opinions of the judges of the court below were opposed were certified to be as follows, viz.:

1. Whether, under the Act of the Legislature of Pennsylvania passed on 3 April, 1792,

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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 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, and from residing thereon from 10 April, 1793, the date of the said warrant, until the 1 January, 1796, but who, during the said period, persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement, as the enacting clause of the ninth section of the said law prescribes, to vest a title in the said grantee.

2. 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 the 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 1 January, 1796, but who during the said period persisted in his endeavors 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 for every hundred 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.

3. 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 said land until the commonwealth has

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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.

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MR. CHIEF JUSTICE MARSHALL, delivered the opinion of the Court as follows:

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 the legislature of that state entitled "An act for the sale of the vacant lands within this commonwealth."

The 9th section of that act, on which the case principally depends, is in these words, "and be it further enacted," &c.

The questions to be considered relate particularly to the proviso of this section, but to construe that correctly it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant before the title to the lands described therein shall vest in him.

Two classes of purchasers are contemplated.

The one has already performed every condition of the sale and is about to pay the consideration money; the other pays the consideration money in the first instance, and is afterwards to perform the conditions. They are both described in the same sentence, and from each an actual settlement is required as indispensable to the completion of the title.

In describing this actual settlement, it is declared that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant

"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 causing 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. "

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The manifest impossibility of completing a residence of five years within the space of two years would lead to an opinion that the part of the description relative to residence applied to those only who had performed the condition before the payment of the purchase money, and not to those who were to perform it afterwards. But there are subsequent parts of the act which will not admit of this construction, and consequently residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement.

The law, requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language to be rendered intelligible. This change, however, ought to be as small as possible and with a view to the sense of the legislature as manifested by itself. The reading suggested by the counsel for the plaintiff appears to be most reasonable and to comport best with the general language of the section and with the nature of the subject. It is by changing the participle into the future tense of the verb, and instead of "and residing or causing a family to reside there," and shall reside, &c. The effect of this correction of language will be to destroy the repugnancy which exists in the act as it stands and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that in the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition; the settlement to be made within the space of two years from the date of the warrant, and the residence in five years from the commencement of the settlement.

This construction is the more necessary, because the very words, "such actual settlement and residence," which prove that residence is required from the warrantee, prove also that settlement and residence are, in contemplation of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a

Page 7 U. S. 67

settlement, no more requires a residence of five than a residence of five hundred years, and of consequence it is much more reasonable to understand the legislature as requiring the residence for that term, in addition to a settlement, than as declaring it to be a component part of a settlement.

The meaning of the terms "settlement" and "residence" being understood, the Court will proceed to consider the proviso.

That part of the act treats of an actual settler (under which term is intended as well the person who makes his settlement the foundation of his claim to a warrant as a warrantee who had made an actual settlement in performance of the conditions annexed to his purchase) and of "any grantee in any such original or succeeding warrant," who must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced are brought together in the same sentence, and terms are used appropriate to the situation of each, but not applicable to both. Thus, the idea of "an actual settler," "prevented from making an actual settlement," and after "being driven therefrom," "persisting in his endeavors," to make it, would be absurd. To apply to each class of purchasers all parts of the proviso would involve a contradiction in terms. Under such circumstances, the plain and natural mode of construing the act is to apply the provisions distributively to the description of persons to whom they are adapted, reddendo singula singulis. The proviso then would read thus,

"Provided always, nevertheless, that if any such actual settler shall be driven from his settlement by force of arms of the enemies of the United States, 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 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

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same manner, as if the actual settlement had been made and continued."

The two cases are the actual settler who has been driven from his settlement and the warrantee who has been prevented from making a settlement, but has persisted in his endeavors to make one.

It is perfectly clear that in each case the proviso substitutes something for the settlement to be made within two years from the date of the warrant, and for the residence to continue five years from the commencement of the settlement, both of which were required in the enacting clause.

What is that something?

The proviso answers that in the case of an "actual settler," it is his being "driven from his settlement by force of arms of the enemies of the United States," and in case of his being a grantee of a warrant not having settled, it is "persisting in his endeavors to make such actual settlement." In neither case is residence or persisting in his endeavors at residence required. Yet the legislature had not forgotten that by the enacting clause, residence was to be added to settlement, for in the same sentence they say that the person who comes within the proviso shall hold the land "as if the actual settlement had been made and continued."

It is contended on the part of the defendant that as the time during which persistence shall continue is not prescribed, the person claiming the land must persist until he shall have effected both his settlement and residence, as required by the enacting clause of the act. That is that the proviso dispenses with the time, and only with the time, during which the condition is to be performed.

But the words are not only inapt for the expression of such an intent, they absolutely contradict it.

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If the proviso be read so as to be intelligible, it requires nothing from the actual settler who has been driven from his settlement. He is not to persist in his endeavors at residence, or in other words to continue his settlement, but is to hold the land. From the warrantee who has been prevented from making a settlement no endeavors at residence are required. He is to "persist in his endeavors" not to make and to continue such actual settlement, but "to make such actual settlement as aforesaid." And if he does persist in those endeavors, he is to hold the land "as if the actual settlement had been made and continued." The construction of the defendant would make the legislature say in substance that if the warrantee shall persist in endeavoring to accomplish a particular object until he does accomplish it, he should hold the land as if he had accomplished it. But independent of the improbability that the intention to dispense only with the time in which the condition was to be performed would be expressed in the language which has been noticed, there are terms used which seem to restrict the time during which a persistence in endeavors is required. The warrantee is to persist in his endeavors "to make such actual settlement as aforesaid." Now "such actual settlement as aforesaid" is an actual settlement within two years from the date of the warrant. As it could only be made within two years, a persistence in endeavoring to make it could only continue for that time.

If, after being prevented from making an actual settlement and persisting in endeavors, those endeavors should be successful within the two years, after which the person should be driven off, it is asked what would be his situation?

The answer is a plain one. By persisting, he has become an actual settler, and the part of the proviso which applies to actual settlers protects him.

If, after the two years he should be driven off, he is still protected. The application of external violence dispenses with residence. The Court feels itself bound

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to say so because the proviso contains a substitute which, in such a state of things, shall be received instead of a performance of the conditions required by the enacting clause, and of the substitute residence forms no part.

In a great variety of forms and with great strength it has been argued that the settlement of the country was the great object of the act and that the construction of the plaintiff would defeat that object.

That the exclusive object of an act to give lands to settlers would be the settlement of a country will be admitted, but that an act to sell lands to settlers must have for its exclusive object the settlement of the country cannot be so readily conceded. In attempting to procure settlements, the Treasury was certainly not forgotten. How far those two objects might be consulted or how far the one yielded to the other is only to be inferred from the words in which the legislative intention has been expressed. How far the legislature may have supposed the peopling of the district in question to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by its own language. At any rate, if the legislature has used words dispensing with residence, it is not for the Court to say it could not intend it unless there were concomitant expressions which should explain those words in a manner different from their ordinary import. There are other considerations in favor of the construction, to which the Court is inclined.

This is a contract, and although a state is a party, it ought to be construed according to those well established principles which regulate contracts generally.

The state is in the situation of a person who holds forth to the world the conditions on which he is willing to sell his property.

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If he should couch his propositions in such ambiguous terms that they might be understood differently, in consequence of which sales were to be made, and the purchase money paid, he would come with an ill grace into court to insist on a latent and obscure meaning which should give him back his property and permit him to retain the purchase money. All those principles of equity and of fair dealing which constitute the basis of judicial proceedings require that courts should lean against such a construction.

It being understood that the opinion of the Court on the two first questions has rendered a decision of the third unnecessary, no determination respecting it has been made.

It is directed that the following opinion be certified to the circuit court.

Certificate of the Opinion

1st. That it is the opinion of this Court that under the act of the Legislature of Pennsylvania passed 3 April, 1792, entitled "An act for the sale of the vacant lands within this commonwealth," the grantee, by a 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 and from residing thereon from 10 April, 1793, the date of the said warrant, until 1 January, 1796, but who during the said period persisted in his endeavors 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. That it is the opinion of this Court that 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 an act of the Legislature of Pennsylvania entitled "An act for selling the vacant lands of this commonwealth," to a person who, by force of arms of the enemies of the United States, was

Page 7 U. S. 72

prevented from setting and improving the said land and from residing thereon from the date of the said warrant until 1 January, 1796, but who during the said period persisted in his endeavors to make such settlement and residence, vests in such grantee a fee simple in the said land, although, after the said prevention ceased, he did not commence, and within the space of two years thereafter, clear, fence and cultivate, at least two acres for every hundred acres contained in his survey for the said land, and 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 of the same, the said grantee being yet in full life.

JOHNSON, J.

I concur in the decision given by the Court in this case, but there was a question suggested and commented on in the argument which has not been noticed by the Court, but which appears to me to merit some consideration.

It was inquired by the counsel for the defendant, should the court adopt the principle that persistence for two years is to be substituted for an actual settlement and residence, what is to be the effect of a partial prevention? Is the warrantee to be subjected to the necessity of making good his settlement, should the prevention cease or commence at any point of time during the two years without any, or under what, limitation?

It is undoubtedly true that any construction of a statute which will produce absurdities or consequences in direct violation of its own provisions is to be avoided. It were better not to depart from their literal signification than to involve consequences so inconsistent with the nature and very idea of legislation. But it does not appear to me that any embarrassment will attend the construction of this act which the Court has adopted; that the case of a partial duration of the existence of the preventing cause is not within the view of the proviso; that it is not excepted from the operation of the enacting clause. It would be absurd to impose upon the warrantee the necessity of performing in a few months, perhaps at the most inconvenient season of the year, a condition for which the act proposes to hold out to him an indulgence

Page 7 U. S. 73

of two years, when prevented too by a cause not within his control and against which the state was bound to protect him. If such were the case now before the Court, I should be of opinion that we must resort to general principles for a decision. With regard to the performance of conditions, it is a well known rule that obstructions interposed by the act of God or a public enemy shall excuse from performance so far as the effect of such preventing cause necessarily extends.

In cases of partial prevention, I should therefore be of opinion that it would be incumbent upon the warrantee to satisfy the court that he had complied with the conditions imposed by the act so far as he was not necessarily prevented by the public enemy.

It may appear singular that a deficiency of a single day, perhaps, should produce so material an alteration in the rights or situation of the warrantee. But the Legislature of Pennsylvania was fully competent to make what statutory provisions it thought proper upon the subject, and the Court is not further responsible for the effect of the words which it has used to express its intent than to endeavor to give a sensible and consistent operation to them in every case that can occur.

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