The act of Pennsylvania of 1779 "for vesting the estates of the
late proprietaries of Pennsylvania in this commonwealth" did not
confiscate lands of the proprietaries which were within the lines
of manors, nor were the same confiscated by the act of 1751 for
establishing a land office.
The statute of limitations of Pennsylvania of 1705 is
inapplicable to an action of ejectment brought to enforce the
unpaid purchase money for lands of the proprietaries within the
manors for which warrants had issued. Nor is the statute of
limitations of 1785 a bar to such an action.
This was an ejectment brought by the defendant in error in the
court below to recover the possession of certain lands in York
County in the State of Pennsylvania.
On 4 March, 1681, Charles II granted to William Penn, the
ancestor of the lessor of the plaintiff below, that tract of
country which now constitutes the State of Pennsylvania. The grant
contains special powers to erect manors and to alien the lands,
with liberty to the alienees to hold immediately of the proprietor
and his heirs, notwithstanding the statute of
quia
emptores.
On 11 July in the same year, William Penn, having interested
many persons in his grant, agreed with "the adventurers
Page 22 U. S. 242
and purchasers" in England on "certain conditions and
concessions" which, being for their mutual advantage, were to be
obligatory in the future management of the property and settlement
of the province. The 9th of these conditions is that "in every
100,000 acres, the governor and proprietary, by lot, reserveth ten
to himself, which shall lie but in one place." In the year 1762, a
warrant was issued for the survey of the manor of Springetsbury.
This warrant recites a former survey of the same land in 1722 as a
manor; states the general outlines of such former survey, and
directs a resurvey. This resurveying was made and returned into the
land office in 1768, where it has remained ever since. This
resurvey included the lands claimed by the plaintiffs in error,
which were held under warrants, of which the following is a
specimen:
"Pennsylvania, ss: BY THE PROPRIETARIES."
"Whereas, Partholomew Sesrang, of the County of Lancaster, hath
requested that we would grant him to take up two hundred acres of
land, situate between Codorus Creek and Little Conewaga Creek,
adjoining the lands of Killian Smith and Philip Heintz, on the west
side of the Susquehannah River, in the said County of Lancaster,
for which he agrees to pay to our use the sum of fifteen pounds ten
shillings, current money of this province, for each hundred acres,
and the yearly quit-rent of one-halfpenny sterling for every acre
thereof."
"These are therefore to authorize and require you to survey or
cause to be surveyed unto the
Page 22 U. S. 243
said Bartholomew, at the place aforesaid, according to the
method of townships appointed, the said quantity of 200 acres, if
not already surveyed or appropriated, and make return thereof into
the secretary's office, in order for further confirmation, for
which this shall be your sufficient warrant, which survey, in case
the said Bartholomew fulfill the above agreement within six months
from the date hereof, shall be valid; otherwise void."
"Given under my hand and seal of the land office by virtue of
certain powers from the said Proprietaries at Philadelphia this
eighth day of January, Anno Domini one thousand seven hundred and
forty-two."
"GEORGE THOMAS [L.S.]"
"TO WM. PARSONS, Surveyor General"
In virtue of this warrant, a survey of the land claimed by Caleb
Kirk, one of the plaintiffs in error, was made on 12 October, 1747,
in favor of Jacob Wagner, the then holder of the warrant by various
mesne transfers. The title was regularly deduced by various
conveyances from Wagner to Kirk, accompanied with possession. No
grant was ever issued for the land. Ten pounds, a part of the
consideration, were paid about the date of the warrant, and there
was no proof of the payment of the residue. It appeared to have
been the usage of the proprietaries not to insist upon the terms of
the contract, by which the survey was declared to be void, unless
the agreement was fulfilled within six months from the date of the
warrant, and large arrearages of purchase money remained due after
the surveys were made
Page 22 U. S. 244
both within and without the manors. The only distinction appears
to have been that the reserved lands were sold by special contract,
and the lands not reserved were sold at stated prices.
At the commencement of the war of the American Revolution, the
proprietary went to Great Britain, where he remained, and in the
year 1779 the Legislature of Pennsylvania passed an act entitled
"An act for vesting the estates of the late proprietaries of
Pennsylvania, in this commonwealth." The ejectment was brought in
the year 1819, and on the trial of the cause the question whether
the land in controversy was included within the lines of the manor
of Springetsbury, as surveyed under the warrant of 1762, was left
to the jury, which found that it was included within those lines.
The opinion of the court below was that if the land was within
those lines, the right of the plaintiff below was excepted out of
the general operation of the act of 1779, and was not vested in the
commonwealth. The court also instructed the jury that the statute
of limitations of 1705, commonly called the "seven years law," was
inapplicable to the case. To these instructions the defendant's
counsel excepted, and a verdict and judgment for the plaintiff
having been rendered in the court below, the cause was brought by
writ of error to this Court.
Page 22 U. S. 256
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment rendered by the Circuit
Court for the District of Pennsylvania in favor of Penn's lessee,
who was plaintiff in a writ of ejectment. The case depends on a
bill of exceptions taken to the opinion of the court, expressed in
a charge to the jury.
Page 22 U. S. 257
[text in Court's opinion missing] alienees to hold immediately
of the proprietor and his heirs, notwithstanding the statute of
quia emptores. On 11 July in the same year, William Penn, having
interested many persons in his grant, agreed with the "adventurers
and purchasers" in England, on "certain conditions or concessions,"
which being for their mutual advantage, were to be obligatory in
the future management of the property and settlement of the
province. The 9th of these conditions is that "in every 100,000
acres, the governor and proprietary, by lot, reserveth ten to
himself, which shall lie but in one place."
It would seem as if this article should be construed as
restraining the power of the proprietor. Being the absolute owner
of the soil, it was in his power, independent of contract, to sell
or not to sell any part of it. But as the value of the lands must
necessarily depend on the progress of settlement, it was obviously
the interest of the great purchasers and adventurers, as well as of
the proprietor, that he should open the country generally to
emigrants. It was also the interest of the proprietor to make large
reservations for his private use, that he might avail himself of
the increased value to be derived from settlement. To prevent his
checking the advance of the settlements by unreasonable
reservations, this article fixes the proportion of land which he
may take out of the general stock offered to the public. The great
mass of land was in the market, to be acquired by any adventurer at
a given price, but out of this mass
Page 22 U. S. 258
the proprietor reserved for himself one-tenth, to lie in bodies
of not less than 100,000 acres.
The survey reserving these lands for his own use, whether
distinguished by the common appellation of manor or by any other
name, was not to give any new title to the proprietor. The sole
effect was to separate the land so surveyed from the common stock
and to withdraw it from the market. The survey was notice to all
the world that the land was not subject to individual appropriation
on the common terms, but could be acquired only by special
contract.
It was not the intention, because it could not be the interest
of the proprietor, to continue all these manors or reserved lands
as unoccupied wastes, but to sell them at such advanced price as
the continuing progress of settlement and increase of population
would justify. The lands reserved and the lands not reserved
belonged equally to the proprietor and were equally for sale. The
only difference between them was that the lands not reserved were
offered to the public at a fixed price, while those which were
reserved could be acquired only by special agreement. This
difference produced the distinction, of which we have heard in
argument and which seems to have been well understood in
Pennsylvania, between warrants on the common terms and warrants to
agree.
In the year 1762, a warrant was issued for the survey of the
manor of Springetsbury. This warrant recites a former survey of the
same land in 1722 as a manor, states the general outlines of such
former survey, and directs a resurvey. This
Page 22 U. S. 259
resurvey was made and returned into the land office in the year
1768, where it has remained ever since among the documents of the
land titles in Pennsylvania.
This resurvey included the lands of the plaintiffs in error,
which were held under warrants, of which the following has been
selected as a specimen:
"Pennsylvania, ss. BY THE PROPRIETARIES."
"Whereas Bartholomew Sesrang, of the County of Lancaster, hath
requested that we would grant him to take up two hundred acres of
land situate between Codorus Creek and Little Conewaga Creek
adjoining the lands of Killian Smith and Philip Heintz, on the west
side of the Susquehannah River in the said County of Lancaster, for
which he agrees to pay to our use the sum of fifteen pounds ten
shillings, current money of this province, for each hundred acres,
and the yearly quit-rent of one-halfpenny sterling for every acre
thereof."
"These are therefore to authorize and require you to survey or
cause to be surveyed unto the said Bartholomew at the place
aforesaid, according to the method of townships appointed, the said
quantity of 200 acres, if not already surveyed or appropriated, and
make return thereof into the secretary's office in order for
further confirmation, for which this shall be your sufficient
warrant, which survey, in case the said Bartholomew fulfill
Page 22 U. S. 260
the above agreement within six months from the date hereof,
shall be valid; otherwise void."
"Given under my hand and seal of the land office, by virtue of
certain powers from the said Proprietaries, at Philadelphia, this
eighth day of January, Anno Domini one thousand seven hundred and
forty-two."
"GEORGE THOMAS [L.S.]"
"TO WM. PARSONS, Surveyor General"
In virtue of this warrant, a survey of the land claimed by Caleb
Kirk, one of the plaintiffs in error, was made on 12f October,
1747, in favor of Jacob Wagner, the then holder of the warrant, by
various mesne transfers. The title was regularly deduced by various
conveyances, from Wagner to Kirk, accompanied with possession.
No grant has been issued for the lands. Ten pounds, in part of
the consideration, were paid about the date of the warrant, and
there is no proof of the payment of the residue.
It appears to have been the common usage for the proprietaries
to give great indulgence to the purchasers of lands for the
purchase money. Although, by the terms of the contract the survey
was declared to be void unless the agreement were fulfilled in six
months, yet the proprietaries appear not to have been in the
practice of availing themselves of this condition. Large arrearages
of purchase money remained due after the surveys were made, which,
as the grants were withheld, were debts upon interest, secured in
the
Page 22 U. S. 261
best possible manner. This credit was mutually advantageous. By
accelerating the settlement of the province, it was beneficial to
the proprietaries, and the purchaser could terminate it whenever it
ceased to be beneficial to himself.
Until the war of our revolution, this state of things appears to
have continued. The settlements advanced with great rapidity.
Manors were surveyed, lands were sold, and large arrearages were
due for purchases made, both within and without the manors. The
only distinction appears to have been that the reserved lands were
sold by special contract and the lands not reserved were sold at
stated prices.
When the war of our revolution commenced, the proprietary went
to Great Britain, and was consequently to be considered as a
British subject, not as an American citizen. The right to
confiscate his property or to leave it untouched was in the
government of Pennsylvania. The Legislature of that state, for
reasons satisfactory to itself, took a middle course. In 1779, an
act was passed entitled "An act for vesting the estate of the late
proprietaries of Pennsylvania in this Commonwealth." This ejectment
was brought in the year 1819.
On the trial of the cause, the question whether the land in
controversy was included within the lines of the manor of
Springetsbury, as surveyed under the warrant of 1762, was left to
the jury, which has found that it was included within them. The
opinion of the judges who tried the cause was that if the land was
within those lines, the
Page 22 U. S. 262
right of the plaintiff, in that court, was excepted out of the
general operation of the act of 1779, and was not vested in the
commonwealth.
To this opinion an exception was taken, which has been supported
in this Court by arguments, in part, applicable to warrants of
every description, and, in part, to those only which were issued on
the common terms.
In that part of the argument which applies to all warrants, the
plaintiffs in error contend that the 5th section of the act of 1779
vests all the rights of the proprietary in the commonwealth, with
the exception of those only which are reserved by other sections of
the same act, and that the right to the purchase money, which then
remained unpaid, is comprehended within the general words of the
5th section, and not excepted in any other section.
In considering this argument, it will be necessary to examine
the 5th section critically and to ascertain its extent with
precision.
It enacts
"That all and every the estate, right, title, interest,
property, claim, and demand, of the heirs . . . or others claiming
as proprietaries of Pennsylvania . . . to which they, or any of
them, were entitled or which to them were deemed to belong on 4
July, 1776, of, in, or to the soil and land contained within the
limits of the said province, . . . together with the royalties,
franchises, lordships, and all other the hereditaments and premises
comprised, mentioned, or granted in the same charter or letters
patent of the said King Charles the second (except
Page 22 U. S. 263
as hereinafter is excepted) shall be and they are hereby vested
in the Commonwealth of Pennsylvania."
The first part of the description of that which the legislature
intended to vest in the commonwealth, comprehends all the rights of
the proprietaries in the "soil and land" of Pennsylvania, but
comprehends nothing else. It would not, we presume, be contended
that this part of the description would embrace the purchase money
due for land, if any such case existed, which had been sold and
conveyed by the proprietary, and for the purchase money of which a
bond had been taken. This act could not, we presume, be pleaded in
bar to an action of debt on a bond given to secure the payment of
money due for land. This section, at least, is directed against the
landed estate of the proprietary, not against his claims for
money.
If this first part of the description does not reach debts on
account of land sold, neither does the second. It seems almost
useless to observe that a debt for land sold is neither "a royalty,
franchise, lordship, or other hereditament," and that it forms no
part of the premises granted in the charter.
The subsequent part of the section vests nothing. It contains
only a more ample description of the absolute and unqualified
manner in which the property, previously described, is to vest in
the commonwealth. It is freed and discharged from every
encumbrance, claim, or demand whatsoever as fully as if the said
charter, &c., "and all other
Page 22 U. S. 264
the estate, right, and title, of the said proprietaries, of, in,
and to the same premises, were herein transcribed and
repealed."
It is unnecessary to comment on the particular words of the
legislature, which are regularly and technically applicable to the
charter, because it is too obvious for controversy that the whole
design and effect of the clause is to show that the property
described in the preceding confiscating clause is to vest in the
commonwealth freed from every trust, limitation, or encumbrance
whatsoever. But the property comprehended in the confiscating
clause was land only, and the land of the proprietaries, together
with the royalties, &c., annexed to it.
If, then, the particular subject of this controversy be within
the 5th section of the act of 1779, it is because it is to be
considered as land to which the proprietaries were entitled. If not
so considered, the 5th section does not vest it in the
commonwealth. If it be so considered, the next inquiry is whether
it be within the exceptions made by the act.
The 8th section provides and enacts
"That all and every the private estates, lands, and
hereditaments of any of the said proprietaries whereof they are now
possessed or to which they are now entitled in their private
several right or capacity by devise, purchase, or descent, and
likewise all the land called and known by the name of 'the
proprietary tenths,' or manors, which were duly surveyed and
returned into the land office, on or before 4 July, 1776,
together
Page 22 U. S. 265
with the quit or other rents and arrearages of rents reserved
out of the said proprietary tenths, or manors, or any part or parts
thereof, which have been sold, be confirmed, ratified and
established forever according to such estate or estates therein and
under limitations, uses, and trusts, as in and by the several and
respective reservations, grants, and conveyances thereof are
directed and appointed."
This section reserves the private estates of the
proprietaries,
"and likewise all the lands called and known by the name of 'the
proprietary tenths,' or manors, which were duly surveyed and
returned into the land office, on or before 4 July, 1776."
That the manor of Springetsbury was duly surveyed and returned
into the land office before 4 July, 1776, has not been controverted
in this Court so far as respects land not sold before the resurvey,
which constitutes the question now under particular consideration,
and that the land for which this ejectment was brought lies within
the survey describing the external boundaries of that manor is
established by the verdict of the jury. The dilemma, then,
presented to the plaintiffs in error is a fair one. The legislature
did or did not consider the right reserved by the proprietary to
reenter and avoid the warrant, or to regrant the land, as an estate
or interest in the soil, as land, even before such right was
asserted. If it was so considered, and, as land, was confiscated by
the 5th section, then it was likewise so considered in the 8th
section, and, as land, was excepted and
Page 22 U. S. 266
saved to the proprietary. If the legislature considered this
right merely as a claim to money secured on the land, then it is
not confiscated by the 5th section, but remains to the proprietor,
unaffected by it. We can perceive no principle of sound
construction by which, comparing the 5th and 8th sections with each
other, the 5th shall, so far as respects land in manors, be made
more comprehensive than the 8th; no principle by which the
confiscating clause shall be made broader than the saving
clause.
It was necessary to reserve the quit-rents expressly in the 8th
section because they may, on fair construction, be understood to be
comprehended in the 5th section, and consequently to be vested in
the commonwealth if not expressly excepted. The quit-rents would
not indeed be confiscated by that part of the section which relates
to soil or land, but may very well pass under the words "royalties,
franchises, lordships, and all other the hereditaments and premises
comprised, mentioned, and granted in the same charter, or some of
them." The quit-rent is a hereditament, reserved under the very
words of the charter, and annexed to the seignory. It would not be
absolutely improper to term it "royalty," since similar
reservations are generally to be found in grants made to
individuals in the royal governments. The express exception of
quit-rents, therefore, without mentioning the arrears of purchase
money, furnishes no argument in favor of the plaintiffs in error.
The quit-rents were excepted in the 3d section because they would,
if not excepted, have
Page 22 U. S. 267
been vested in the commonwealth by the 5th. The arrears of
purchase money were not excepted, because they did not pass the 5th
section. But if the quit-rents were not compromised in the 5th
section, they were abolished in the 9th, and might therefore
without impropriety be included in the exception of the 8th so far
as respects manors.
There is nothing in the act of 1779 which would lead to the
opinion that the legislature was actuated by a spirit of hostility
against the Penn family. No disposition is shown to confiscate the
debts generally which were due to that family. The great object of
the act was to transfer the right to the soil of Pennsylvania from
the proprietary to the commonwealth. This was a great and a
national object. It was of the more pressing importance at the
moment, because no means existed at the time of obtaining titles to
ungranted lands, in consequence of which, as the 4th section
recites, "multitudes of inhabitants were daily emigrating from the
state." In accomplishing this great object, the legislature was not
unmindful of the ties by which Pennsylvania had been formerly
connected with the proprietor. In addition to the private estates
of the family, to the manors actually surveyed, and to the
quit-rents reserved on the lands sold within those manors, 120,000
pounds sterling are bestowed on the family, among other
considerations, "in remembrance of the enterprising spirit which
distinguished the founder of Pennsylvania." Not only, then, is
there nothing in the act evincing that vindictive, hostile temper
which would justify the court in extending it, by construction,
to
Page 22 U. S. 268
objects not fairly embraced by its terms, but its whole spirit
is in opposition to the idea. Taking this view of the subject, we
should be astonished indeed to find that the same legislature which
left untouched the accruing quit-rents on the lands sold within the
manors, as well as those which were in arrear, should seize the
arrears of purchase money within the same manors; that the
legislature should spare, so far as respected the manors, that
which partook in its nature and essence of the proprietary
character and should seize that which was, in its essence, private
debt and was distinguishable from other private debts in nothing
but in the manner in which it was secured.
The 5th and 8th sections, then, leave the arrears of purchase
money due for land sold within the manors precisely in the
situation in which the act found them.
Both parties have resorted to the 9th and 10th sections of the
act.
The 9th section discharges all the lands held under the late
proprietaries, not within the tenths or manors, from quit-rents or
arrearages of quit-rents and arrearages of purchase money. And the
10th section provides
"That the said arrearages of purchase money, other than for
lands within the said tenths and manors, shall be accounted to be
due and payable to the commonwealth."
No man who reads this act will be at a loss for the motive which
induced the draftsman of the bill to introduce the 9th section. The
5th and 8th, taken together, would leave all the lands of
Page 22 U. S. 269
Pennsylvania still chargeable with quit-rents, and would vest
those not within the manors in the commonwealth. It was the
intention of the legislature to discharge the lands not within the
manors from this burden, and a section was necessary for that
purpose. Read the section, omitting the words respecting the
purchase money of lands not within the manors, and it expresses
with plainness and perspicuity the idea which has been suggested.
All who are acquainted with our course of legislation know that
after a bill has been framed and the language adapted to its
objects, amendments are sometimes introduced into it in a late
stage of its progress without being sufficiently cautious to change
the language which was adapted to the original matter so as to fit
it to the new matter contained in the amendment. This can alone
account for the perplexity and confusion of the 9th and 10th
sections of this act. The 9th section, which is so perfectly clear
without the words respecting the arrearages of purchase money for
lands not within the manors, is so embarrassed and confused with
them as to be scarcely intelligible, and the whole office of the
10th section is to vest in the commonwealth a part of that which
the 9th had abolished. Courts must, however, give to these sections
that interpretation which seems best to comport with the intention
of the legislature.
The 8th section had confirmed to the proprietors forever the
quit-rents reserved in the manors. The 9th, while it was intended
to abolish all quit-rents on all other lands, commences with
Page 22 U. S. 270
general words which in themselves would comprehend the
quit-rents of the manors and produce a conflict between the two
sections were not those general words limited and explained
afterwards. But they are limited and explained by the words, "other
than the quit or other rents, reserved within the proprietary
tenths or manors before mentioned." Between the general words,
however, with which the clause commences, and those words of
limitation which have been just recited, are introduced the words
"and arrearages of purchase money for lands not within the tenths
or manors aforesaid." Because the words of limitation apply to the
quit-rents only, and not to the purchase money, it has been
supposed that the purchase money for lands within as well as
without the manors has been abolished, and that the concluding
words of the section, that the "same lands shall be held free and
discharged therefrom, forever," apply to the purchase money of
lands within the manors, as well as to the quit-rents of lands not
within the manors.
This construction cannot, we think, be sustained. The general
words which introduce the section required the exception and
limitation afterwards introduced so far as respected quit-rents,
but the words respecting purchase money contain their limitation
within themselves. The words of description exclude lands within
the manors. No general words are applied to the purchase money,
which require subsequent explanation or diminution. The words of
limitation too, are in themselves applicable to quit-rents
Page 22 U. S. 271
only. When, then, we come to the enacting part of the clause,
which ordains that the "same lands and other hereditaments shall be
held free and discharged therefrom, and from the payment thereof,
forever," and ask what are the same lands? and from what are they
discharged?, the only answer which can be made to the question is
that "the same lands" are lands not within the manors, and that the
discharge is "from all quitrents other than the quit or other rents
reserved within the proprietary tenths or manors, before
mentioned," "and arrearages of purchase money for lands not within
the tenths or manors afore said." That the legislature deemed it
necessary, by one of these sections, to take from the proprietaries
the arrearages of purchase money not within the manors, and by the
other, to vest them in the commonwealth, is proof that this was not
done by the 5th.
The inference to be drawn, as we think, from the 9th section,
that the legislature never lost sight of the distinction set up
between manors and the general territory of the commonwealth, is
strengthened by the language of the 10th section, which provides
and enacts,
"That in order to preserve equality among the purchasers of land
under the said late proprietaries, the said arrears of purchase
money, other than for lands within the said tenths and manors,
shall be accounted to be due and payable to the commonwealth."
Now if the legislature had supposed itself, by the preceding
section, to have abolished all the arrears of purchase money due
from lands within
Page 22 U. S. 272
the manors, how would it "preserve equality among the
purchasers," to coerce the payment of the purchase money for lands
without the manors, to the commonwealth? Or what motive can be
assigned for discharging those within the manors from paying for
their lands, and requiring payment from those without the manors.
It would be a caprice for which it would be impossible to
account.
Where the language of the legislature is clear, courts cannot be
permitted to assume an intention repugnant to that language,
because it imports what they think unreasonable, but words are not
to be forced out of their natural meaning, to produce what is
unreasonable, if not absurd.
The plaintiffs in error also rely on the 6th section of the act
establishing a land office, passed in 1781, as amounting
unequivocally to a confiscation of the rights of the proprietary in
the land in contest.
This proposition is sustained by applying to all lands, words
which are, indeed, general in themselves but which are obviously
enough used by the legislature with reference to particular lands,
the right to which was vested in the commonwealth by the act of
1779.
This act does not purport to be an act of confiscation, but an
act for opening a land office for the lands of the commonwealth. It
does not purport to be an act of acquisition, but of disposition of
that which had been previously acquired. It commences with a
recital, that "many of the lands in the state, heretofore taken
up," &c.,
Page 22 U. S. 273
"are yet unpatented, and the purchase money, and arrearages of
purchase money, thereon due, are vested in the commonwealth, . . .
and the owners and holders of such rights, since the shutting up of
the land office, have not had it in their power to pay in the
purchase money and obtain patents, for remedy whereof, be it
enacted, that an office be erected,"
&c.
The subsequent regulations, then, respecting the payment of the
purchase money, were intended for such purchase money only as was
already vested in the commonwealth, and the unpatented lands
referred to, are those only, the purchase money due on which was
then vested in the commonwealth. It is important, too, in the
construction of this act to recollect that the framers of the act
of 1779 could not have intended any interference, by means of a
land office, or otherwise, with the manors. They remained the
property of the proprietaries, who were themselves to receive the
arrears of purchase money, and to complete the titles. The whole
act being framed for the property of the commonwealth, the general
words of the 6th section must be understood to be limited to the
subject matter of the act -- that is, to the property of the
commonwealth.
The act directs that patents shall be issued for lands for which
the purchase money shall be received, and the 16th section directs,
that the land, so granted, "shall be free and clear of all
reservations and restrictions, as to mines, royalties, quit-rents,
or otherwise." Now the act of 1779
Page 22 U. S. 274
expressly reserves for the proprietors the quitrents within the
manors. This act, then, cannot be construed to authorize the
issuing patents for lands within the manors unless it be also
construed to be a confiscation, by implication, of property
expressly reserved for, and vested in individuals, by a preceding
act of the legislature. This construction, to be justified, must be
unavoidable.
But the 12th section appears to the court to deserve some
consideration. That section declares, "that nothing in the act
shall be construed to extend to lands, not granted in the usual
forms of the land office."
There were, then, lands in Pennsylvania, "not granted in the
usual forms of the land office."
As this case comes on after a general verdict, on an exception
to a charge given by the court to the jury, it is incumbent on the
person taking the exception, to show that the charge is erroneous.
If it comprehended this act, of which the Court is not satisfied,
still it is incumbent on the exceptor to show that lands within
manors were "granted in the usual forms of the land office." This
fact is not shown.
The act of 1783 is obviously limited to the same subject to
which the act of 1781 applies. All arguments founded on this act
are liable, too, to this additional objection. It was enacted after
the treaty of peace, when the power of the state legislature over
the estate of William Penn, real and personal, had ceased.
We come now to that part of the argument which
Page 22 U. S. 275
applies particularly to warrants issued on the common terms, for
lands afterwards surveyed as a manor. It is contended by the
plaintiffs in error that such lands, though comprehended
geographically within the lines of a manor, are not legally a part
of it, and are not, therefore, either as to the land itself or as
to the purchase money, saved to the proprietaries, under the act of
1779. The reservation in the 8th section of that act is of
"all the lands called and known by the name of 'the proprietary
tenths, or manors,' which were duly surveyed and returned into the
land office, on or before 4 July, 1776."
It has not been suggested that the lands which may happen to be
held by common warrants within a manor are distinguished by a
different appellation and are
"not called and known by the general name given to all the
adjoining lands within the survey; but it is contended that such
are not brought within that part of the description which requires
that they should be 'duly surveyed.'"
Although lands for which a conditional warrant had previously
issued, be, in fact, surveyed as a manor, it is insisted, that such
survey was not duly made. This is giving to the word "duly" a
meaning which, in the opinion of the court, was not intended by the
legislature.
The act of 1779 conferred no new right on the Penns, but left
them in possession of their preexisting rights, whatever they might
be, within a described territory. It did not interfere with any
controversy which might exist between Penn and
Page 22 U. S. 276
others, within that territory, but left such controversy to be
decided between the parties, as if the law had never been passed.
The act is simply an adjustment between Penn and the commonwealth.
It refers to a fact of public notoriety, as marking the lines of
division between them. That fact is a survey, duly made and
returned into the land office, before 4 July, 1776. The survey must
be understood as one entire thing, describing the particular tract
of country surveyed, and the words "duly made," mean, made
according to the forms prescribed by law or usage. It was very well
known that, within these surveys, some lands were sold and some
were not sold. On all which were sold, quit-rents were received,
and on some of them the purchase money was still due. With the
land, if not sold, with the quit-rents and purchase money, if sold,
the legislature, as has been already shown, declares its purpose
not to interfere. There is nothing in the language, nor is there
anything in the character of the transaction, which would lead to
the opinion that the legislature intended to discriminate between
the different rights of the proprietaries within the manors. The
hand of government is not laid upon the manors, and all the rights
of the proprietaries within those boundaries, whether to land,
purchase money, or quit-rents, remain untouched. There can be no
conceivable reason for supposing that the legislature meant to
inquire into the dates of the warrants evidencing the sale of
lands, while the right to sell was acknowledged, and to discharge
one contract of sale within the untouched boundary,
Page 22 U. S. 277
while another remained valid. The words make no such
distinction, and we can perceive nothing in the nature of the
property which will justify the court in making it.
If we trace these words "manors" and "proprietary tenths" to
their first use, we shall find reason to confirm, not to change,
the sense in which we suppose them to have been used in the act of
1779.
By the 19th section of the charter, license is granted to
William Penn and his heirs "to erect any parcels of land within the
province aforesaid into manors." There is no restriction on this
power which confines its exercise to lands which are vacant at the
time. There was, then, no want of power in Penn to comprehend
within a manor lands which were actually sold. The rights of the
purchaser, the tenure by which he held his property, could not be
changed, nor would they be changed, by including his land within
the survey of a manor.
The proprietary tenths originate in the conditions or
concessions agreed on between William Penn and certain adventurers
and purchasers on 11 July, 1681. The 9th condition or concession
is: "In every 100,000 acres, the governor and proprietary, by lot,
reserveth ten to himself, which shall lie but in one place."
Now it is very apparent that supposing this stipulation to be a
fundamental law and to enure to the benefit of all the inhabitants,
it can only restrain the proprietary from reserving more than ten
out of every 100,000 acres of land, and compel him to lay it off in
one body. If within any survey
Page 22 U. S. 278
of 10,000 acres, there should be some lands previously granted,
the surveys would certainly not impair those grants, nor would
those grants vitiate the survey. The respective rights of the
parties would depend upon the law, which would decide that the
purchaser would hold his land on complying with the conditions of
the purchase, and that, on his failing to comply with them, the
proprietary might either indulge him by giving further time or
might reenter and hold the land or regrant it. In the event of
reentry, it can scarcely be contended, that this land would not be
considered as a part of the proprietary tenth, provided it did not
swell the amount of the reservation beyond the tenth which might be
legally reserved. The including of lands previously sold, within a
survey of a reserved tenth, as it would give the proprietary no new
right against the purchaser, might sink so much of his reservation,
but could produce no other question than might arise between him
and the purchaser, respecting the validity of the sale. These are
questions with which the Legislature of 1779 manifested no
intention to interfere. It will not, we presume, be doubted that
the words "manors" and "proprietary tenths," have the same meaning
throughout the act; that they always designate the same lands; that
when used in reference to quit-rents, they have the same meaning as
when used in reference to the arrears of purchase money.
Now it appears from the statement of the testimony made in the
charge of the court to the jury, which is the only regular
information of the
Page 22 U. S. 279
evidence given in the cause, that an agreement was entered into,
in 1736, between the proprietary and a number of the inhabitants,
by which he engaged to make them titles for certain specified
quantities of land in their possession, on the common terms. This
agreement is stated to have been afterwards carried into execution.
The contract, as stated, contains unequivocal proof of having been
made under the idea that the survey of 1722 was valid, that it
related to lands within the lines of that survey, and that the land
within its lines was considered as a manor. That survey may not
have been attended with those circumstances which would bring it
within the saving of the act of 1779, and, certainly, in this
cause, is not to be considered as a valid survey of a manor. It was
nevertheless believed, in 1736, by the parties to this contract, to
be a manor; and those proceedings which took place respecting lands
within it are consequently such as might take place respecting
lands within a manor. We find sales of land made to fifty-two
persons, upon the common terms, and grants made to them according
to contract. When the final survey was made, comprehending these
lands as being part of the manor of Springetsbury, were they less a
part of that manor because they were granted as a part of it before
that survey was made? When in 1779 the legislature excepted from
confiscation the quit-rents "reserved out of the said proprietary
tenths or manors," is it credible that they intended to create a
distinction, never heard of before, between the quit-rents on lands
lying
Page 22 U. S. 280
within the lines of the manor, and sold as part of the manor, to
depend on the terms or the time of the grant?
The defendants in the circuit court gave in evidence fifteen
instances of lands lying within the manor being settled for on the
common terms. Were these lands excluded from the manor by being so
settled for? Did the legislature of 1779, when about to save for
the proprietaries the quit-rents reserved out of manors or
proprietary tenths, or out of land commonly called and known by the
name of manors or proprietary tenths, which were duly surveyed and
returned into the land office, on or before 4 July, 1776, fix its
mind on the survey to which reference is made, or on the dates and
terms of the grants made for lands within the survey? If on the
survey, then the language expresses the intention; if some other
distinction was designed, it is strange that no words were inserted
pointing to such distinction. The legislature intended to
confiscate the estates of the proprietaries in part, and in part
only. The line of partition between the commonwealth and the Penn
family was to be drawn. It was the province of wisdom and of
justice to make this line a plain one. It was proper that the
commonwealth, and Penn, and the people of Pennsylvania, should be
able distinctly to discern it. If the lines of the manors, as
surveyed and returned in the land office, before 4 July, 1776,
constitute the dividing lines between the parties, they are plainly
and distinctly drawn. If some
Page 22 U. S. 281
imaginary distinctions are to be made between the lands
comprehended within those lines, or the quit-rents reserved on
those which had been sold, the whole certainty of the division is
lost, unless some other line, equally plain, equally rational, and
equally justified by the words of the act can be substituted. Is
this practicable in the case before the Court? Extensive sales were
made in a tract of country, supposed by the seller and the
purchaser to be a manor. Other sales were made containing in the
contracts no intrinsic evidence that the parties understood the
lands to be within a manor. The purchase money, in both cases, is
paid, and deeds are made reserving the usual quit-rents. To
ascertain the real boundaries of the manor, to make a legal survey
of it, if one had not before been made, a warrant of resurvey is
issued, and a survey made and returned into the land office,
comprehending both these classes of lands, with others which were
at the same time vacant, as being within the manor. When the
legislature saves to the proprietaries the quit-rents out of lands
sold within the manors, can a distinction have been intended
between those lands which were sold as part of the manor before,
and those which were sold after the resurvey? If it be assumed,
where the warrants contain no evidence of being intended for manor
lands, that the parties or the proprietaries were ignorant of their
being comprehended within a manor, what difference, in reason, can
this make? The lands were equally liable to quit-rents in the one
case and the other. They were equally within a manor,
Page 22 U. S. 282
whether known or not known to be within it. Could the
legislature have a motive in the one case more than in the other
for abolishing these quit-rents? If the motive existed, it would be
shown in the language adopted. But the search for it in the
language of the legislature would be as fruitless as in the reason
of the case. The Court cannot set up this distinction.
If the word "manor," when used as describing territory within
which quit-rents are saved, comprehends lands sold before the
resurvey, then the same word, when applied to the arrears of
purchase money, retains the same meaning.
It has been urged in argument that the legislature intended
clearly to distinguish between the rights of Penn, as an
individual, and his rights as proprietor. The first were reserved;
the last were confiscated. This distinction, so far as respects the
subject of the present controversy, is not to be found in the law.
The 8th section confirms to the proprietaries all their private
estates, "and likewise all the lands called and known by the name
of the proprietary tenths or manors." These proprietary tenths or
manors, then, did not compose a part of, but were in addition to,
their private estates. They were held too by precisely the same
title by which other lands in Pennsylvania, not sold nor reserved,
were held. Nor was there any new modification of that title. They
were withdrawn from the mass of property offered for sale on the
common terms, but were still held by Penn, solely as proprietor
under the charter. The quit-rents, too, were clearly an
appendage
Page 22 U. S. 283
to the original grant, retained on the lands which were sold,
and retained by Penn in his character as proprietor. Yet these are
expressly saved to him. There is, then, in the act of 1779, no
intention to make the private and proprietary rights of Penn the
criterion by which the line of partition between him and the
commonwealth should be ascertained; but there is a clear intention
to divide his proprietary estate, and to make his surveys of manors
the criterion by which this line of partition should be
ascertained.
This result is, we think, very clearly produced so far as
respects the soil, by the 5th and 8th sections, and is, we think,
produced not less clearly with respect to the arrears of purchase
money, by the 9th and 10th sections. Strike out those sections and
there is nothing in the act which can reach the arrears of purchase
money, within or without the manors. They would, like other debts,
remain the property of the creditor. The 9th section expressly
abolishes "the arrearages of purchase moneys for lands not within
the tenths or manors aforesaid," and if, as we think, the tenth, or
manor, was in the minds of the legislature, described by a survey
thereof, made according to law or usage, and returned into the land
office before 4 July, 1776, then the lands on which the arrearage
of purchase money is claimed, in this case, are within one of the
aforesaid tenths, or manors.
We think, then, that the lands, or the purchase money, which the
plaintiffs in the circuit court
Page 22 U. S. 284
claim in this case, are not confiscated by any act of the State
of Pennsylvania.
Before we take leave of the act of 1779, it may be proper to
inquire whether it has any operation on the lands lying within the
manors, and which had been sold, but not granted, the terms of sale
not having been complied with. It will be recollected that those on
whose property this law acted, were the subjects of an enemy, and
that the legislature possessed full power over their estates.
Having the power to confiscate absolutely, they might modify that
power in its exercise, as to them might seem proper. The 7th
section provides and enacts that all the rights, &c., which
were derived from the proprietaries, or to which any person other
than the said proprietaries were entitled, "either in law or
equity," by virtue of any deed, patent, warrant or survey, of, in
or to any part or portion of the lands contained within the limits
of this state, or by virtue of any location filed in the land
office before 4 July, 1776, shall be, and they are hereby
confirmed, ratified, and established forever, according to such
estate or estates, rights or interests, and under such limitations
or uses as in and by the several and respective grants and
conveyances thereof are directed and appointed.
This section comprehends all the lands within the state, whether
within or without the manors, to which any individuals had derived
a title from the proprietaries, either in law or equity, by virtue
of any deed, patent, warrant or survey, and confirms such title
according to the estate, right or interest
Page 22 U. S. 285
conveyed. That the section operates alike on lands within and
without the manors, and that it confirms titles under warrants or
surveys, for which the purchase money has been paid, are certain.
It is equally certain that it does not interfere with the arrears
of purchase money which may still be due, because that whole
subject is taken up and disposed of in the 9th and 10th sections of
the act. The doubt is whether it has any influence on any lands,
the purchase money for which had not been paid, and if any, how it
affects the title to such lands.
The right of reentry was reserved as a security for the payment
of the purchase money, but does not appear to have been exerted,
and was probably considered in the light of a mortgage, to be used
merely as the means of enforcing the fulfillment of the contract,
not as absolutely terminating the estate. That the proprietaries
looked on for a great number of years and saw lands held under
warrants void on their face, for the failure to fulfill the
contract within the specified time of six months, and never in a
single instance, so far as appears in the case or has been alleged
in argument, attempted to avoid the estate, would certainly afford
a strong equity to such purchaser against the proprietary, should
such an attempt be made. And that ejectments were maintained on
such titles is also evidence of the opinion entertained of them in
the courts of Pennsylvania. It seems to have been understood by all
that the proprietary was to avail himself of the condition in the
warrant, for no other purpose than to coerce the payment of the
Page 22 U. S. 286
purchase money. This became, from usage, a kind of tacit
agreement, which their real interest required all parties to
observe. Yet when a new state of things was introduced, it was
natural for that numerous class of purchasers, who had not paid up
the whole of the purchase money, to be uneasy at the hazard in
which their titles were involved, and their representatives would
very naturally feel disposed to quiet their minds on this
interesting subject. It would not be unreasonable to suppose the
existence of a disposition to make the contract expressly what it
was understood to be, and to do away the forfeiture except as a
mode of enforcing payment of the arrears of purchase money. The
confirmation of titles, by their own terms void, for nonpayment of
the purchase money, accompanied with the preservation of the right
to the purchase money, admits of the construction that the clause
of forfeiture may be used to enforce the payment of those arrears,
but not as extinguishing the estate. At all events, this section
has the same application to lands within, as to lands without the
manor, and the construction it has received with respect to the one
may serve as a rule for the other.
The next exception to be considered is to that part of the
charge which declares the act of 1705, commonly called the seven
years law, to be inapplicable to the case. That act enacts
"That seven years quiet possession of lands within this
province, which were first entered on upon an equitable right,
shall forever give an unquestionable title to the same against all,
during the estate
Page 22 U. S. 287
whereof they are or shall be possessed, except in cases of
infants,"
&c.
It has been contended that this act is merely retrospective, and
in support of this opinion, it has been said that for more than one
hundred years it has never been resorted to in the courts of
Pennsylvania.
To this argument it is answered that the language of the act is
prospective, that it purports to be an act of limitations, that it
is found among the printed statutes of Pennsylvania, and that its
operation has never been denied, so far as we are informed, in any
of the courts of that state. During the irregularities which take
place in the first settlement of a country, an act of limitations
is peculiarly desirable, and it would be strange if Pennsylvania
should have remained entirely without one. The 16th section of the
laws agreed upon in England enacts "that seven years quiet
possession shall give an unquestionable right, except in cases of
infants," &c. An act of the same import as to possession,
without any exception in favor of infants and others, was passed in
1700, but was repealed in England in 1705, in which year the act
was passed which is now under consideration. The people of
Pennsylvania had one uniform and constant wish on this subject.
Neither the 16th section of the laws agreed on in England, nor the
repealed act of 1700, can be considered as retrospective, and there
is some difficulty in giving this construction to the act of 1705.
But the courts of Pennsylvania having never considered this act as
having the effect of
Page 22 U. S. 288
an act of limitations, this Court is not inclined to go further
than it has gone. If, however, it were to be so considered, it must
be governed by those rules which apply to acts of limitation
generally.
One of these, which has been recognized in the courts of England
and in all others where the rules established in those courts have
been adopted, is that possession, to give title, must be adversary.
The word is not, indeed, to be found in the statutes, but the
plainest dictates of common justice require that it should be
implied. It would shock that sense of right which must be felt
equally by legislators and by judges if a possession which was
permissive, and entirely consistent with the title of another
should silently bar that title. Several cases have been decided in
this Court in which the principle seems to have been considered as
generally acknowledged, and in the State of Pennsylvania
particularly, it has been expressly recognized. To allow a
different construction would be to make the statute of limitations
a statute for the encouragement of fraud -- a statute to enable one
man to steal the title of another by professing to hold under it.
No laws admit of such a construction.
The true question, then, is whether the occupancy of those who
held under these conditional warrants, was consistent with or
adversary to
Page 22 U. S. 289
the title of the proprietaries? Upon the answer to this question
it seems difficult to entertain a serious doubt. It is reasonable
to suppose that the practice of selling lands on credit, and of
issuing warrants in the form of that which is inserted in this
case, and of holding the legal title to secure the payment of the
purchase money, prevailed from the first proceedings under the
charter, until the declaration of independence, a period of near
one hundred years. In the particular case before the Court, credit
was given from the year 1742, and we are not informed, and
consequently have no reason to suppose, that this indulgence was
singular. The legislation of Pennsylvania on the subject justifies
the contrary opinion, for we perceive among their printed statutes,
several of a late date, giving further time to pay in the purchase
money for lands sold before 10 December, 1776.
These acts of further indulgence, continued for such a length of
time, furnish strong evidence that the cases were very numerous to
which those acts would apply, and show too that in the opinion of
the legislature, no act of limitations had barred the claim. Now
this practice, in which the proprietaries, and a great portion of
the population of Pennsylvania, concurred is incompatible with the
idea that the title of the purchaser became adversary to that of
the proprietary within six months after the date of the warrant of
survey. In the case before the Court, the survey was made, in fact,
upwards of five years after the date of the warrant. It is
conceivable that the surveyor, who
Page 22 U. S. 290
was an agent of the proprietary, would have made the survey, had
he supposed it to confer a title adversary to that of his
principal? a title which would enable the holder, by remaining
quiet only one year and three months longer, to set the proprietary
at definance, and to hold the land discharged from the contract by
which it was acquired. The very practice of holding back the title
and of giving such extensive indulgence for the payment of the
purchase money, seems to demonstrate a general opinion, that, so
long as this state of things continued, the title to the land was
still in the proprietary, and the purchaser acknowledged his title.
The occupation of the purchaser was with the consent of the
proprietary, and consequently not hostile to his rights. The
proprietary permitted the purchaser to hold the land, subject to
his claim to the purchase money; and the purchaser held under the
admission that the land remained liable to the purchase money, and
that the proprietary might, at any distance of time, assert his
title to it, so far at least as to secure his purchase money. There
seems to have been a mutual understanding and a mutual confidence
between the parties. How far the proprietary may have had it in his
power to violate this confidence, by seizing the land, and refusing
to convey it on a tender of the residue of the purchase money, is a
question which does not appear ever to have been determined, or
ever to have occurred. But certainly, during this state of things,
the purchaser could not be considered
Page 22 U. S. 291
as holding a possession adversary to the title which he
acknowledged.
It has been contended that the survey of the manor was a
determination of the estate under the warrant, and the assertion of
an adversary title, from which time the act of limitations began to
run.
There is certainly nothing in the fact itself which supports
this proposition. All the transactions of the parties contradict
it. There is no fact which shows a disposition in the proprietary
to reenter on any lands for which a warrant had previously been
granted; nor is any case of such reentry shown, from the first
settlement of Pennsylvania. Several instances are mentioned of
grants completed on the common terms within the manor of
Springetsbury, while it was considered by the parties as a
manor.
No inference, then, is to be drawn from the facts in the case
favorable to the conclusion that the survey of a tract of country
as a manor, was considered as determining the estates created by
surveys on warrants previously issued, the conditions of which had
not been fulfilled by the purchasers. This must be a conclusion of
law, from the single act of survey, so inflexible as not to be
influenced by the intention with which that act was performed, and
the opinion prevailing at the time, as attested by usage, or the
argument cannot be sustained.
But how is this conclusion of law to be supported? The survey of
a large tract of land cannot be considered as an entry on a smaller
tract within its lines, as an ouster of the occupant, or even as
a
Page 22 U. S. 292
trespass on him. How, then, can such survey be considered as
having any legal effect different from the intention with which it
was made? It is indispensable to the argument to maintain that the
mere act of survey does, of itself, in point of law, show an
intention inconsistent with the continuance of any conditional
estate, within the limits of the manor. This the plaintiffs in
error have endeavored to maintain, and for this purpose have
contended that a new title, which they call the "manorial title,"
and which they say is distinct from the proprietary title, was
created by the survey; that the plaintiffs in error hold under the
proprietary title; the plaintiffs in ejectment, under the manorial
title. Their claims are consequently adversary to each other.
But this argument cannot be reconciled with the fact. No new
title was created by the survey. There was no source from which
title could be derived, other than from the proprietary himself.
The survey was, not to give a new title, but to separate a certain
tract of land from the general mass, which was offered to every
adventurer. The effect of this survey was, not to avoid contracts
already made, but to give notice to the public, that these lands
were thereafter to be acquired by special contract only. The act of
1779 found this to be the existing state of things; and in dividing
the estates of the proprietaries between the commonwealth and the
former owners, adopted the lines of the manors as the lines of
partition between them. This created no new title, but left
Page 22 U. S. 293
to the proprietaries their former title within the described
boundaries.
We perceive, then, nothing, either in the law or the fact of
this transaction, which tends to show that the possession of the
plaintiffs in error has been adversary to the rights of the person
under whom he originally claimed.
Having considered the act of 1705 as if it were an act of
limitations, all the reasoning which has been applied to that act,
applies also to the act of 1785, on which the 8th exception is
founded. The several treaties formed with Britain, have a very
important influence on the time which has elapsed since the war
between the two countries.
The opinion that the plaintiffs in ejectment have still a right,
notwithstanding the acts of 1705 and 1785, to proceed at law,
presupposes their consent to the continuance of the original title,
created by the warrant; for if the possession taken under the
warrant or survey was not continued with the consent of the
proprietary, it immediately became adversary, and the act of
limitations immediately commenced. If, then, there be any case in
which this assent is not to be presumed, that is a case in which
the plaintiff in ejectment is barred by the act of 1705 or
1785.
If, as the court thinks, the rights of the proprietaries were
converted, by long acquiescence in the usage which must have been
known to them, of selling the lands, as being liable only for the
purchase money; or, by the 7th section of the act of 1779, or by
both united, into a mere right to the purchase money, still the
remedy of proceeding
Page 22 U. S. 294
against the land for the purchase money remains, and is not
taken away by the act of 1779. That act, having reserved the
purchase money for the proprietor, must, of course, be construed to
reserve his remedy, unless it was expressly taken away. It is not
easy to point out any other remedy than this, by ejectment. The
original purchaser has transferred, and were his representatives
even still liable for the purchase money, which is far from being
admitted, they may not be able to pay it, if they could be found.
It was not on their personal responsibility, but on the land
itself, that the vendor relied. His claim was attached to the land,
and passed with it. The remedy reserved is on the land, not on the
person. It would be difficult to form an action at law against the
person; and in Pennsylvania, there is no court of chancery even if
a bill in equity could be sustained. The remedy must be by
ejectment.
There are other exceptions in the record, which, though not
pressed, have not been waived. It was therefore the duty of the
court to examine them. The result of that examination is that the
only serious questions in the cause are those which grow out of the
acts of 1705 and 1779. These having been rightly decided, there is
no error, and the judgment of the circuit court is affirmed.
MR. JUSTICE JOHNSON, dissented.
The reasoning upon this cause must be utterly unintelligible to
those who hear it, unless premised by the following state of
facts:
The grant to William Penn, vested in him and
Page 22 U. S. 295
his heirs, both the soil and sovereignty of the State of
Pennsylvania, subject to a few reservations of right and power, not
material to be noticed here. But before his colony took their
departure from England, he entered into a variety of stipulations,
restricting the exercise of both his power and rights over the
territory which they were about to occupy. These are known by the
epithets of his conditions or concessions; and it is by one of the
articles of this instrument that he precludes himself from setting
apart more than one tenth of the soil, for the several and
individual use of his family. The rest was to be granted out to
settlers, on terms which were to be common to all except those who
purchased within the proprietary tenths, with whom he was at
liberty to contract as he pleased for the sale of his lands.
By the 17th section of the charter, there was power given to the
proprietary to erect manors, with right of court-baron,
frank-pledge, &c., and to grant the land therein for estates,
which the grantees could not divest of the incident of being held
directly of the manor, or the grantee of the manor, who is
denominated Lord of the manor. The manor of Springetsbury, within
which this land lies, was surveyed for the use of the
proprietaries, and surveyed as a manor. There was evidence in the
cause below, of its having been laid off as early as 1722, but it
was certainly resurveyed in 1768; and as the court below rested the
case upon the effect of the resurvey, as equivalent to an original
appropriation, I presume the case does not require that we should
look beyond it.
Page 22 U. S. 296
The titles under which the defendants below (and plaintiffs in
appeal), defend their possession, originated in 1747 and 1748, and
would be entitled to unquestionable precedence, but for the
following facts:
The warrants of survey contain a condition in these words,
"which survey, in case the said A. B. fulfill the above agreement
within six months from the date hereof, shall be valid, otherwise
void." The agreement here referred to was, to pay a sum of money
(called, with reference to its fixed amount, the common terms) in
six months. A portion, about one-third, of this sum, it appears,
was paid, but there was nothing in the cause to sustain the payment
of the residue, unless it was possession, lapse of time, and
supposed acquiescence of the proprietaries. When the manor was
surveyed in 1768, there were many of these individual landholders
comprised within the lines then laid off, all holding on the common
terms; and there were afterwards many other tracts sold upon what
are called, in the peculiar language of that country, the terms
agreed, by which is understood according to a value to be adjusted,
without confining the vendor to the common terms. Such tracts were
sold out to the purchasers of this class, as Penn's individual
property. Upon all these lands there were reserved a small annual
sum called quit-rents. In the year 1779, the legislature passed an
act entitled an act "for vesting the estates of the late
proprietaries of Pennsylvania in this commonwealth," by one section
of which the proprietary tenths, or manors, are granted to the
proprietaries, "together
Page 22 U. S. 297
with the quit-rents and other rents reserved thereon." By
another, all the lands of the state except those within the tenths
or manors are exempted from quit-rents and released from any lien
for balances of purchase money, which purchase money is vested in
the commonwealth.
The question is whether the lands within the manors granted out
to individuals previous to surveying the manors are entitled to the
benefit of these exemptions, in common with all lands of the same
class within the state, and the action below is an attempt to
exclude from that benefit those prior grantees under the idea that
they are excepted by the effect of the reservations in favor of the
proprietaries. And this supposed right of the proprietaries is
asserted through the medium of an action of ejectment under the
idea that the legal estate is in the grantee of the manor, and only
an equitable interest in the tenant, the prior purchaser.
The received doctrines on the subject of what creates a legal
estate in a grantee, it must be observed, are altogether peculiar
in the State of Pennsylvania. A warrant, a survey, and payment of
the consideration money is held to give an absolute estate in fee,
though not consummated by a patent. This subject came on to be
considered by this Court as early as the year 1799, and the law was
then clearly recognized to be as I here state it. Judge Iredell
uses the expression, as applied to a title so acquired, "a legal
title, as distinguished from an equitable title."
Page 22 U. S. 298
The peculiarities of the form in which this question comes up
must be attributed to local practice. The charge given by the court
on summing up to the jury is copied into the record and exceptions
taken to those parts of it which were unfavorable to the defendants
below. These exceptions were ten in number, but only the 4th, 7th,
8th, and 10th have been insisted on in argument here. Of these, I
consider the last in numerical order as proper first to be noticed.
It is expressed in these words:
"Because the evidence exhibited manifested the absence of legal
title in the plaintiff's lessee, whereas the court charged the
jury, that he was possessed of the legal title, and as such,
entitled to recover in this action."
The court below has considered the title of the defendants below
as a mere equitable title, all its conclusions, from first to last,
have their basis in this doctrine. And had it been shown in
argument that this idea was sustained by a course of decisions in
the state courts, I certainly should not feel myself at liberty to
contest it. But everything conspires to satisfy me that the estate
vested in the warrantee upon the execution of a survey was never
considered in any other light than a legal estate in the
jurisprudence of that country. Whatever may be the correct legal
construction of the words of the warrant, if such has been the
practical construction,
communis error facit jus, and it
is now too late to criticize on the meaning of terms.
Page 22 U. S. 299
My reasons for adopting this opinion are the following:
1. I look in vain through the statutes of that state for any
legal provision for entering, avoiding, and regranting lands for
failure in paying the arrears of purchase money. On the contrary, I
find an act passed on 9 April, 1751, which furnishes a legislative
exposition of the law on this subject. By the provisions of that
act, the treasurer is authorized to issue an execution for the
arrears of purchase money due on lands granted prior to 10
December, 1776, and to levy on and sell the land so granted. That
the warrants and survey created in favor of the state a debt and a
lien is unquestionable, and this is all that the state affirms in
passing this law; but by the same legal provision, it negatives the
idea of the property in the soil having ceased to exist in the
tenant. No change in this respect was effected by the act of 1779,
commonly called the vesting act, since that act only confirms
individual estates according to their existing qualities.
Nor has the legislative power been altogether silent on the
subject of forfeiture and regranting, for by the 10th article of
the concessions, there is provision made for regranting lands which
may become forfeited for failing, for three years, to seat and
improve them. Nor do I believe that there can be produced in the
history of the jurisprudence of that country an instance in which
this power of regranting has been extended to any other case.
Page 22 U. S. 300
2. I think this opinion follows as a corollary to the
proposition that payment of the consideration money vests a legal
estate. For why should a patent be unnecessary if there remained
any act to be done on the part of the proprietary in order to pass
a legal estate? It may be contended that this doctrine results from
the peculiar jurisprudence of that state, in which, for want of
courts of equity, the courts of law have adopted the maxim that we
must consider that as done which ought to be done. But to this
there is a brief and unanswerable reply. Such might be the reason
where a patent is demanded and the fees tendered, but such demand
and tender have never been insisted on as necessary in support of
the general effect of payment of the consideration money, to vest a
fee simple absolute, without a patent.
Some analogy may be supposed to exist between this case and that
of mortgagor and mortgagee. But if so, the relation is reversed,
and the converse of the rights and liabilities of the mortgagee
results from it. For the debtor conveys the fee to the creditor in
the ordinary form of mortgaging, and retains only the right to
redeem. Here the creditor conveys the estate
cum onere.
And the question as to the interest vested in the defendants below,
whether it was legal or equitable, still recurs. If legal, it bears
an analogy with an estate in fee subject to a charge, rather than
to an estate subject to a mortgage, in which former case, the
creditor could not maintain ejectment.
Page 22 U. S. 301
The only analogy, in my judgment, between this estate and anyone
known to the common law, is that of a feoffment on condition. The
warrant is the deed, the survey the livery of seizin, and the
condition is a condition in deed, as distinguished from a condition
in law, and it is also a condition subsequent. In which case, it is
clear, that the estate is a legal estate, and remains good until
entry made for the forfeiture, by someone legally authorized. This
leads to the questions, whether, previous to their formal entry on
bringing this ejectment, such an entry was made? Whether legally
made? And what were its legal effects?
Unless the manorial appropriation of 1768 can be considered as
an entry, it is not pretended that any legal eviction of the
defendants below ever took place. And as to that, I think it
perfectly clear that it could on no principle operate as a legal
eviction. It was an act on every principle, perfectly consistent
with the full and unmolested enjoyment of the premises in question.
And this consequence follows whether we consider it in the light of
a simple designation of metes and bounds, over which the original
proprietary rights were retained, or, what appears to be the more
proper view, as an original grant, converting it from an interest
existing in the proprietary, in his political capacity, into an
estate held by him in his individual relations to the society, of
which he was both a member and a ruler. In the first view, there
was no sensible change made in the estate, as it existed previously
in this, and the whole territory,
Page 22 U. S. 302
and in the second, the interest acquired, or effect produced,
could be nothing beyond that of a grant to any individual, other
than the proprietary. In the latter case, it is perfectly clear
that running the circumscribing lines, would be no trespass or
eviction. These appropriations to the proprietary were intended to
operate exclusively upon unseated territory. On that which had been
previously surveyed to individuals, they could produce no effect
whatever; otherwise they might as well have dispossessed those who
held by a perfect, as those who held by an inchoate title. Although
circumscribed by the lines of the manor, the seated tracts composed
no part of the thing appropriated; they could not have been
estimated as any part of the proprietary's tenths; and there never
was a doubt of his right having still existed, to extend the limits
of his survey, so as to take in as much land as he was deprived of
by these prior included individual appropriations. A different
construction would be greatly to his prejudice, inasmuch as he
might, by possibility, have lost the whole of his tenths, by taking
in the grants to others. This view of the subject I shall again
have reason to recur to on another point.
But if this circumscribing survey could on any principle be held
equivalent to an entry, it is still necessary to maintain that it
was a legal entry. And this I am prepared to negative upon various
grounds. It is obvious that such an entry must be justified, either
on the ground of personal right of legal power. A mere arbitrary
power to resurvey did not exist in the proprietary; the
Province
Page 22 U. S. 303
of Pennsylvania had taken the form of a state, governed by a
wise and beneficient government, in which the will of the
proprietary had been subjected to the public will, and his allodial
interests circumscribed to his purchase money and quitrents, and
his reserved tenths. As to the land seated under warrants to
individuals, he was bound by his own concessions and the
legislative will, and I see no power delegated by law to anyone to
enter and evict for failure to pay the consideration money reserved
on such appropriations; nor have we been told of any practice on
this subject that could be construed into a national acquiescence
in the exercise of such a power. The debt and the lien remained,
but the right of eviction and regranting for nonpayment, was never
legalized nor asserted, nor could it in any case have been
tolerated without a tender of that part of the consideration money
which had been already paid. Again, an entry for condition broken
must be made as such, and with intent to produce the legal effects
of an entry; a mere casual friendly passing of the boundaries of
the premises will be inconsequential, but here, the sole object of
the survey of 1768 was to appropriate unseated land, and not to
assert a title to that which had been previously appropriated. The
present claim is but an afterthought, a speculation upon the
possible effect of an act not intended to produce eviction.
This leads to another consideration operating against both the
fact and legality of this supposed entry, for condition broken. It
is agreed on all hands that proof of the full payment of the
consideration
Page 22 U. S. 304
money, would have been conclusive against the title of the
plaintiffs below. But why may not presumption of such a payment
arise from length of time and acquiescence?, and that of the
plaintiff below be left as a fact to the jury? If resumption of a
patent may, under circumstances, be left to a jury in favor of
possession, much more so may a fact so much less solemn in its
nature, and more difficult of proof, as payment. In this case, and
in all cases arising in Pennsylvania, such a fact may well be
submitted, since in practice it has superseded the issuing of a
patent, and may well tempt the parsimony of purchasers, since the
expense of a patent has become an expense of supererogation. The
long forbearance and acquiescence of the proprietaries can be
referred only to one of three causes; a consciousness that they had
acquired nothing in the seated lands within their manorial
appropriations; that they had no right to enter on the premises
previously seated; or, that the title in it was perfected by
payment. All which would operate against both the fact and legality
of the supposed entry.
From these considerations I am led to adopt the opinion, that
the title of the defendants below was a legal title, and the better
title; that if voidable, it could be avoided only by entry for
conditions broken. That no such entry was made or was intended to
be made or could be legally made, and that they were, therefore
entitled to a charge in their favor. With this view of the subject
it may not be necessary for me to go further. But it comports with
the practice of this
Page 22 U. S. 305
Court that I should express an opinion on the other points in
the cause.
And first as to the bearing of the act of confiscation on the
subject of this suit.
The court below appears to have considered a manor in the light
of a geographical tract or portion of territory designated by metes
and bounds. I, on the contrary, consider the term as designating an
estate or legal interest within the geographical limits. In this
sense, nothing will be comprised in the meaning of the words of the
8th section of the law but those tracts of land within those limits
which were held of the manor, or, in the peculiar language of that
country, granted on terms to be agreed. It is very clear that the
8th section of the act of confiscation was not intended to convey
to the proprietaries any interest not previously existing in them.
Now how did a manorial appropriation operate upon the lands that
had been seated previous to such appropriations? It is clear that
it vested no interest in such lands, nor anything incident to them.
If the whole purchase money had been paid, the individual's estate
was consummated. And if the whole was not paid, it is admitted in
the charge, that the proprietary could not change the tenure or the
terms of purchase. And so far were these previously seated tracts
from being considered in law as making part of the manor, that the
proprietary's right to indemnify himself from adjacent unseated
territory, for the deduction from his tenths, caused by these
excepted tracts, has been solemnly recognized in that court.
Then,
Page 22 U. S. 306
though within the manor, they were not of the manor; as well
might an island or an oasis be denominated water or desert. And
there were unanswerable reasons, in justice and policy, why such
land should have been so considered. It is asserted that the
proprietaries never in fact exercised any of those privileges and
powers within the tracts denominated manors, which were authorized
by the charter.
But this consideration has no influence upon my opinion, for
1st, I see no reason, except the intervention of the revolution,
why the proprietaries, or lords of the manors, may not have assumed
the exercise of those privileges. In case of escheats, there can be
no doubt that they would have asserted one manorial right, and were
probably prevented from asserting all, only because in the actual
state of the province, they would have been burdensome and
unproductive. But, 2d, they did assert one important privilege
within those limits, a privilege which they were precluded by law
from exercising beyond those limits. This was the right to demand a
higher price for the lands within their manors than that to which
they had restricted themselves in the state at large. And this
appears to me to establish a familiar and definite ground of
discrimination, by which to determine the operation of this act of
confiscation in any given case. Was the land held on the common
terms, or the terms agreed? It cannot be disputed that the general
purpose of the act of confiscation was to distinguish between the
land appropriated to the individual use of the proprietaries,
Page 22 U. S. 307
and that over which they were held to exercise only a political
power, or fiduciary interest. They were permitted to acquire an
individual property in one tenth of the territory of the state, and
the lands so appropriated, as well as the proceeds of the sale of
such lands, were meant to be set apart to them, while that which
had been seated by individuals, as a part of the unappropriated
nine tenths, reserved to the community, was intended to be
confiscated. Any other construction would go to imply, that the
state had reserved to the proprietaries, territory which was no
part of their legal tenths, and also that but for this reservation,
the act of confiscation would have divested individual interests
not intended to be confiscated.
But let us examine more particularly the provisions of this act
with a view to determining its just construction. And here let me
premise that for all the purposes of this suit I care not whether
the 9th section of the act vests in the proprietaries the balances
due on the tracts within the manor, sold on the common terms, or
not. The question here is whether they are entitled to judgment in
a suit in ejectment, and of consequence to a writ of possession,
for I cannot distinguish the one from the other. I wholly reject
the doctrine of suing for possession and recovering money; of suing
for land and recovering pounds, shillings, and pence. Such a
perversion of means might proceed from positive legislation, and,
in the State of Pennsylvania, where an amalgamation of law and
equity necessarily grows out of
Page 22 U. S. 308
the want of an equity jurisdiction, the practice has grown up,
of giving an alternative judgment in such cases, for either the
land or the money, or rather for the money to be levied on the
land. But this Court is expressly prohibited from thus confounding
legal and equitable proceedings, and the whole opinion of the court
below proceeds on a recognition of the necessity of pursuing the
two classes of legal and equitable rights, by their appropriate
remedies. I have said, and in this I do not understand myself as
differing from this Court, that the only practical effect of the
terms of the warrants to individuals is, to create a debt and a
lien; but surely a tenant may covenant to stand seized, subject to
a charge in gross, and yet retain the legal estate. And even in the
ordinary case of a mortgage, where the legal estate passes from the
debtor to the creditor, and the converse of the present case
exists, an assignment of the debt is no conveyance of the legal
estate to the assignee. A court of equity will pass the one as an
incident to the other; but in a court of law, the assignee could
not maintain ejectment. And that is the only question here. If it
be said that although in this suit the plaintiff below may not be
entitled to recover the land, but may avail himself of this form of
action to recover the purchase money due, I consider it as an
abandonment of the question, for the debt, if existing, was but an
equitable lien, and the remedy here resorted to is a common law
remedy. I think, however, I shall show that although the debt
exists, the lien is taken away by the act of confiscation, and
Page 22 U. S. 309
though the debt be due, it is not due to these parties, but to
the Commonwealth of Pennsylvania.
In following this act of confiscation through the detail of its
provisions, we find that after four sections, setting forth the
views and motives of the legislature, the fifth section, or first
enacting clause, contains a general assumption of the soil and
sovereignty of the state, and a revocation of the charter to Penn,
as fully, to use its own language, "as if the same were therein
transcribed and repealed." The sixth section asserts the future
exclusive appropriation of the "soil and lands, hereditaments and
premises, to be in the legislature of the state," and under the
operation of these two clauses, it is very clear that every right,
civil and political, of the proprietaries, "of, in, or to the soil"
of Pennsylvania, derived under the charter, was (subject to the
exceptions in the same act) vested in the commonwealth, "freed and
discharged," as the act expresses it, "from and against all
estates, uses, trusts," "charges, encumbrances, titles, claims, and
demands whatsoever." And all the title which they now hold therein,
they hold by virtue of the provisos contained in the 8th and 9th
sections. But to understand the force and meaning of those two
sections, I deem it material that the language and effect of the
7th section should be duly weighed. This section contains a general
confirmation of all the estates, legal and equitable, derived from
the proprietaries, their officers, &c., or otherwise, or to
which any person or persons, other than the proprietaries, were
entitled, either by deed, patent, warrant, or survey
Page 22 U. S. 310
on 4 July, 1776.
This clause operates in favor of all persons "other than the
proprietaries," and confirms, unquestionably, the estates of these
defendants below, in common with every other citizen. The next
proviso (8th section) is confined to the subject of the estates and
interests of the proprietaries. And here it is obvious that three
subjects claimed the attention of the legislature. Their estates
and interests were distributable into three classes: they held
property acquired, in common with every other individual, "by
devise, purchase, descent," &c.; they held other property,
under the reservation of a tenth of the soil, to their individual
use; and they held, or claimed, a third class of interests, as
proprietaries, which clashed with that eminent domain, which was
now about to be assumed by the State of Pennsylvania. The latter
the state determined to confiscate, and compensate them for; the
former two to preserve to them unviolated. And these considerations
draw a line of demarcation between the subjects of this act,
infinitely more definite and rational than that marked out by trees
or streams. The estates held upon the common terms were those which
constituted the third class, and the phraseology of the act appears
to me to be in perfect accordance with the general intent. On this
point, I hold it to be an important fact that without exception,
throughout these two sections, tenths and manors are never used
apart; they are constantly considered synonymous and equivalent.
Now although a manor may, by common acceptation, be considered as a
geographical section, a
Page 22 U. S. 311
tenth is a term of comparison and quantity, and has direct
relation to that interest which the proprietaries had acquired, and
might acquire, as a distinct individual property in the soil. I
consider, therefore, both manor and tenth, as here used, as
designating estate and interest, and not geographical limits. And
why should it be held a reservation, by geographical limits? Let it
be remarked that it is no immaterial question to the defendants in
the court below, not only as it affects their interests, but as it
affects their claims upon the justice and impartial legislation of
country. There can be no reason assigned why they should be
excluded from the benefits which this act confers upon citizens of
their class, and in fact subjected to confiscation. There are
important interests growing out of this act to all other
landholders, upon common terms; they are exempted from quit-rents,
and the lien for the balance of purchase money is taken from off
their lands. Can there be a reason assigned why those of this class
who, by the caprice or cupidity of the proprietaries, or their
agents, have been embraced within the lines of their surveys,
should be excluded from the common benefits extended to their
fellow citizens? The injustice of such a discrimination is
conclusive on the construction of the act, if an act is to be
construed according to the intent of the legislature. With regard
to those who held of the manor, or held, as is usually said, on
terms agreed, the case is widely different. It is the effect of
their own individual contracts with the proprietary. They are, by
the nature of
Page 22 U. S. 312
their relation to the proprietaries, distinguished from those of
the other class, and have nothing to complain of. Their quit-rents
and arrears were considered as debts due to their landlord, and the
legislature intended to take from the Penns nothing which belonged
to them in their individual capacity.
Again, extending the construction of the act to the geographical
limits of the manor, leads to the most absurd consequences.
It has been insisted that it was lawful, in surveying the
manors, to include within their boundaries the grants to
individuals. This is readily conceded, and the inference from the
fact is directly the reverse of what has been attributed to it. Did
the legislature mean by the proviso in favor of the Penns, to
reserve to them their legitimate tenths, or did they mean, by
possibility, to reserve to them half the state? There cannot be a
doubt that, although any particular survey had embraced half a
county, yet if the vacant land within it had amounted to no more
than a tenth, the appropriation would have been duly made and
valid. But could the legislature ever have intended to exclude all
the individuals thus circumscribed from the common benefits of
grantees on the common terms? to have subjected them to the most
odious and unmerited exceptions? Could the state have intended to
permit the proprietaries, under the pretext of surveying a tenth,
to cast their net over half its limits? It was for the very reason
that including individual surveys made them no part of the manor,
that the right to include previous
Page 22 U. S. 313
locations to individuals was tolerated. It had not entered into
the mind of man to conceive that they thereby produced any change
in the relation which subsisted between those individuals and the
commonwealth, or could expose them to be separated from the mass of
the community, in the several legislation of the state, or exclude
them from an equal participation in all the benefits of the
revolution. But by this geographical construction, without any act
or offense on their part, they are shut out from immunities
extended to others, who had no greater claims upon the community
than themselves.
But again, if we are to construe this act without a reference to
its general spirit and intent, we have but to carry the principle
through, in order to involve us in irreconcilable absurdity, and
such as will oblige us, for the purpose of common sense, to come
back to the very principle of construction which I would apply to
the law throughout. A liberal construction of the 8th section vests
in the Penns the whole geographical contents of their manors,
whether sold or unsold, and then adds to the grant the rents
reserved out of the parts sold. The words are,
"All the lands, &c., duly surveyed, &c., together with
the quit or other rents, or arrearages of rent, reserved out of the
said proprietary tenths, or manors, or any part or parts thereof
sold."
Now to reduce this section to the standard of common sense, we
have at once to reject the geographical limits, and circumscribe
the thing granted to the estate or interest existing in the Penns
at the time specified.
Page 22 U. S. 314
Nor is it immaterial to note the particular phraseology here
made use of. The words are "reserved out of the said proprietary
tenths, or manors, or the part or parts thereof which have been
sold." Now the lands sold to these defendants below were sold out
of the general funds of the state, and the quit-rent on these was
reserved out of the land of the state, and not of the manor, for
that had no legal existence when this sale and reservation were
made. The land was not sold as part of the manor, nor was the rent
reserved out of part of the manor.
But secondly, there is not a pretext for this supposed resulting
legal estate in the Penns, except the assumed reservation to them
of the balance of purchase money on the grants held within their
lines upon common terms. And how does this stand? It will be found
to be only an implied grant, to which this implied legal estate is
appended; an implication tacked to another implication, and
finally, as the concluding link of this chain of implication, that
ejectment is the remedy reserved for the recovery of that balance
of the purchase money, which is itself the subject of the first
implication.
If the rights of the Penns be circumscribed by the positive
enactments of this law, then are they not only precluded from all
claim to the balances due by this class of grantees, but also from
those due by every description of purchasers, for there is no
positive provision in the law which vests those balances in them.
Their quit-rents are expressly reserved to them in the manors, but
not so
Page 22 U. S. 315
with their balances of purchase money. But in the 9th and 10th
sections these arrearages of purchase money are excepted from the
provisions of the law, without any express declaration to whom they
shall belong, and from this an implication is supposed to result in
their favor. But surely, so far as relates to the balances due by
the general grantees, the implication is so far from being a
necessary implication, that its bearing is altogether the other
way; the implied intent of the legislature is against a
construction so obviously inconsistent with the general purposes of
that body; a construction producing such an unjust, unreasonable,
and improbable discrimination between innocent and equally
meritorious men of the same class. Construe the act so as to
confine the grant to the Penns to their private interests in the
manors, and it becomes sensible and consistent throughout, and
while it secures to them, on the one hand, all the interests which,
as individuals, they are entitled to; on the other hand, you extend
to all other individual citizens one uniform rule of legislation
and relief.
Again, there is no reason for supposing that when the
legislature uses the terms tenths and manors aforesaid, in the 9th
section, or the said tenths and manors, in the 10th section, that
it uses them in any other sense than that in which they are used in
the 8th section. The terms used in fact identify their meaning. But
a correct construction of the terms used in the 8th section in
describing these tenths, or manors, is fatal to all implication in
favor of the Penns, with reference to any
Page 22 U. S. 316
interest in the lands legally seated, previous to their
appropriation. The words are "tenths, or manors, duly surveyed and
returned into the land office." But who will deny, that these words
are to be construed with reference to the intent and effect of such
surveys? And what was that intent and effect? simply to appropriate
unseated lands. Would these proprietaries have been content in
laying off these surveys, to have been precluded and deprived of
half their interest by previous surveys, over which they could not
have exercised the right of selling or retaining, as they thought
proper? If not, then, so far as relates to previously ceded lands,
they never were appropriated by them, and it cannot be predicated
of them that in the sense of the parties they were surveyed and
returned.
The construction now contended for is obviously an afterthought
of the plaintiffs below, growing entirely out of a supposed
ambiguity in the words of the confiscation act, and would have been
strenuously resisted, had they been so applied when their surveys
of manors were first made.
Again, the rule of construction applicable to leases and wills
are not essentially different in their principles. In legislating
on this subject, the state had assumed all the rights, and at least
could exercise all the powers of a manor-holder in making his last
will. Although by the charter, the purchasers under manors are
restricted from any alienation of their purchases, by which they
might be devested of the incident of holding directly of the manor,
it is obvious that such a change of
Page 22 U. S. 317
estate might be produced by the act of the manorholder. Suppose,
then, the grantees of the manor of Springetsbury had sold any
portion of the soil, and divested it of this incident, lying, we
may suppose, in the very center of the whole, would a devise in the
very words of this act, "to-wit, of the manor of Springetsbury, as
duly surveyed and returned," have been construed to carry the
portion previously disposed of? Or, to pursue the analogy further,
suppose the purchase money unpaid, and a covenant by indenture of
the tenant to pay the money to the vendor and his heirs, and even
to hold the land charged with the payment, would a devise of the
manor carry the money so reserved, or the devise of the debt carry
the freehold in the land sold?
But on this doctrine of implication I will make another
observation. It is rebutted by the provisions of the instrument
itself, and in the case of a will, would be considered as an
undisposed residue, for when we look through the whole act and find
this 8th section to be the only one which purports to give anything
to the proprietaries, their whole interest having been previously
confiscated, and when in this section we find their individual
interests in the soil of the state, whether acquired as other
individuals or as proprietary appropriations, carefully designated,
and even to the arrearages of quit-rents on such lands, expressly
reserved to them, surely the implication arises that this section
was intended to embrace the whole provision meant to be made for
them out of the common patrimony of the state.
Page 22 U. S. 318
The omission to mention and reserve the arrearages of purchase
money due on the manorial sales might with much greater reason be
urged as raising a presumption against their claims even to those
balances. This, however, I reject, and for a reason which serves to
throw some light upon the subsequent clauses of this statute, which
is that as the legislature in so many words recognizes these
alienations as individual sales, they very properly considered the
balances due thereon as private debts, and as no confiscation of
private debts could be implied from the enacting clauses of the
act, so no express reservation of such balances was deemed
necessary. The subsequent exceptions in favor of balances due on
manorial lands, therefore I consider as intended only to guard
against an extension of the words of the law to such individual
contracts. The nine-tenths of the soil, and the balances of
purchase money due on such parts as had passed to individuals, they
considered as the property of the body politic, and appropriated it
as such to the state. The one-tenth set apart for the proprietaries
they propose to put on the same footing with their individual
interests, properly so called, and with it to reserve to them the
balances due on the lands appropriated to themselves. These are
fair and consistent inferences, if not positive enactments, but it
would be much more consistent with the positive enactments to hold
that all the balances due on the lands circumscribed by the
manorial lines were still at the disposition of the legislature
than that they meant to
Page 22 U. S. 319
confer on the Penns more than they have declared, or made
discriminations among the citizens at large, which no reason or
policy could justify.
Upon the questions that have been raised upon the operation of
the law, commonly called the seven years law or the law of 1705
(though of much greater antiquity) it may be proper to make a few
remarks.
I cannot see a reason why this law should have been supposed
obsolete, more especially with reference to the early day in which
it must have acted upon the interests of the parties in this cause.
On the contrary, it appears to have been a favorite law of the
colony, for we find it enacted and reenacted in opposition to
reiterated repeals by the King in council, as will be seen by
reference to Carey and Bioren's edition of the Laws. In the same
work we find it printed under sanction of the legislature, and
republished under the same authority, as lately as 1810. Indeed,
upon reference to the concessions which composed the fundamental
laws of the colony, we find the very law in its present terms, and
are led to the conclusion that its constitutional character gave it
a peculiar sanctity in the eyes of the commonwealth. Another
consequence also results from its very early enactment, which is
that, contrary to a ground taken in argument, it must be construed
as having a prospective effect, since it was adopted at a time when
there could not have existed a case for it to govern, if solely
retrospective. Of this law it has been remarked, that for 116 years
it does not appear that a cause
Page 22 U. S. 320
has been won or lost on the basis of it. And had the decisions
of the state courts prior to the revolution been preserved, the
observation would have had its influence. But in the absence of
reports of such adjudications, there cannot exist such satisfactory
evidence on the subject as to sustain the fact. One thing is very
certain -- that some beneficial influence must have been felt from
its existence or it would not have been so often and so
pertinaciously insisted on by the colonists. If it covered their
estates in no other way than by preventing suits, its great
purposes were answered, and its sovereign influence in this respect
may well be inferred from the assumed nonexistence of decisions at
law. It preserved health if it did not cure disease. At present, it
is unquestionably repealed by the act of 1785, for the two acts
cannot stand together. The latter act extends the limitation of
suits to twenty-one years, but if the limitation of seven years
would produce the same effect, then would the prior law repeal the
latter, or render it a mere nullity. And this accounts for its not
having been heard of for the last forty years, which may be called
the period of reported causes. Its repeal, however, at that time
has no influence upon its previous effect upon the rights of these
parties.
It has been remarked of this law, as incontestable, that it
could not convert an equitable into a legal estate. But this
doctrine appears to me to do more than render the law obsolete; it
renders it a mere nullity in its origin. What is gained by an
estate's continuing an equitable estate? From
Page 22 U. S. 321
its inherent strength, unaided by the law if accompanied with
continued possession, it would continue a good equitable estate;
and why should not the comprehensive words "shall forever give an
unquestionable title against all" be construed into a transmutation
from an equitable into a legal title? How can any but a good legal
title be denominated an unquestionable title?, and why should not
all comprise legal as well as equitable claimants? The opinion
below supposes the signification of those terms to be circumscribed
by the words "during the estate." But from this I must dissent,
since these words do not necessarily convey that meaning, and are
more properly applied to the distinction of estates into terms for
years, estates for life, estates in fee, in tail, &c., all
which may be either legal or equitable. Neither can I acquiesce in
that part of the opinion which considers a discharge from the
purchase money of the land as a necessary consequence of giving
effect to the seven years law, as against the plaintiffs below in
this cause, for the lien might continue, though a legal and
absolute estate be vested in the defendants below. And to prevent
the operation of this law in favor of the possession, lest the
claim for the purchase money should incidentally be barred, appears
to be inverting the order of things, for, by the acts limiting
suits on contracts, the suit for the purchase money might by
possibility be barred, while the remedy to recover the land was
still in full force, being of longer duration. The superior purpose
of quieting estates of freehold also would, under that
Page 22 U. S. 322
doctrine, be controlled by the inferior one of enforcing open
contracts, or implied covenants. While the most ordinary means of
adjusting contracts for the sale of lands on credit remained in
practice, there could be no danger, in giving credit on sales, of
losing both land and money, as the court supposes. But if that
consequence did follow,
non constat, but that the public
interest as well as private tranquility might have been promoted by
it.
To me it appears that this seven years law has had a sovereign
influence over the rights of property in that state. I have no
doubt that it is under its influence the doctrine has grown up that
a possessor of the soil need not produce a patent to protect his
freehold, as well as the doctrine that those words which, on the
face of the warrant, would seem a condition shall not be held to
produce more than a contract and a lien.
But if this seven years law did not quiet the possession of the
defendants below, I confess I am at a loss to understand the
principle upon which that effect is denied to the limitation act of
1785. Was their estate void or voidable, legal or equitable? In
every point of view, the law appears to me to operate in their
favor.
The opinion below is thus expressed: "Possession, to create a
bar by length of time, must be adverse, which it cannot be if the
defendant's entry was under a title derived from the plaintiffs."
That a possession, to sustain a bar under the act, must be adverse
is unquestionable. But when the court comes, in the next member of
the
Page 22 U. S. 323
period, to explain what is meant by an adverse possession, we
find the doctrine asserted that a possession cannot be held adverse
to the title of him from whom it is derived. This doctrine I hold
to be altogether untenable, and this sentence alone, though every
other idea be put out of the case, would, in my view of the
subject, entitle the plaintiffs here to a reversal of the judgment.
The title acquired by a vendee is most peculiarly adverse to that
of him from whom he purchases.
But under what view of the subject could these plaintiffs be
held mere tenants at will to the parties plaintiffs below?, or
their possession any other than an adverse possession? They did not
hold as the agents or representatives of those through whom they
derived the title. From the time of entering into possession, they
held in virtue of the estate in themselves, and not that of any
other. If the idea is that the proprietaries might at any time have
entered upon them, and in that sense the estate was held at their
will, the answer is that is one of the very cases that the act of
limitation provides against, for it takes away that volition in the
proprietary unless the entry be made in twenty-one years. But the
fact was not so; these tenants did not hold at the will of the
proprietaries, for all those who acquired under the common terms
were taken under the care of the law and we find act upon act to
regulate the proceedings of the proprietary towards them. The right
to turn them out by the shoulders never existed in the proprietary;
he must have resorted to his entry or suit to recover possession;
they were
Page 22 U. S. 324
considered as holding a freehold, and the law did not entitle
him to resume possession arbitrarily. It was the doctrine of that
state that his rights were restricted to the payment of the
purchase money and quit-rents, at least until he tendered a return
of advances and improvements. It cannot be imagined that the
reservation of quit-rents converted the purchasers into tenants at
will; neither principle nor authority would sanction the idea. Nor
can I perceive anything either in the legal relations or contracts
of these parties that could sustain the doctrine that the
possession of the defendants was permissive, and identified with
that of the proprietary. A tenancy at will must be the result of
contract, express or implied, but a freehold granted on condition
is not converted by forfeiture into a tenancy at will. Yet had it
been otherwise, surely lapse of time, general acquiescence, and
received opinion ought to be held to produce the same consequences
as to the tenure of property in this state, which were produced by
the same causes in England upon the tenure by copy of court roll.
That which was in its origin nothing but a tenure at will retains
now nothing of its origin but the formula which attests its
history.
To conclude, let the estate of these defendants below be
considered as either void or voidable, and I see not how the act of
limitations is to be escaped by their antagonist. If voidable, on
failure to pay the purchase money, the entry is expressly taken
away by that statute, and if void, they cannot be reduced lower
than to the grade
Page 22 U. S. 325
of tenants by sufferance, with regard to whom entry and suit was
just as indispensable as with regard to any other tenure. Co.Lit.
57. In the application of the doctrines on the statute of
limitations, the incidents to the two tenures ought not to be
confounded.
Judgment affirmed.