Construction of the Act of the Legislature of Virginia
entitled
"An act fur the locating and surveying the one hundred and fifty
thousand acres of land granted by a resolution of the assembly to
George Rogers Clark and the officers and soldiers who assisted in
the reduction of the British post in the Illinois,"
passed on 18 October, 1790, of the act of 1783, entitled "An act
for surveying and apportioning the lands granted to the Illinois
regiment, and establishing a town within the grant," and also of
the act entitled, "An act to amend an act entitled
An act for
surveying and, apportioning the lauds granted to the Illinois
regiment,' and establishing a town within the grant," passed in
1790.
Construction of the act of the Legislature of Virginia, passed
in December, 1783, adding the territory northwest of the River Ohio
to the United States, and of the deed of cession of the same
territory, executed on the lot of March, 1784.
That a lessee will not be allowed to deny the title of his
lessor, is admitted, but it is not admitted that a contract
executed for the purpose of conveying and acquiring an estate in
fee, but wanting that legal formality which is required to pass the
title, may be converted into an agreement contemplated by neither
party, and by this conversion estop the purchaser, while it leaves
the seller free to disregard the express stipulation.
The facts are stated in the opinion of the court.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of ejectment originally brought by Joseph
Bartholomew and others, trustees of the Town of Clarksville, in the
Circuit Court for the County of Clark in the State of Indiana, and
removed on the petition of the original defendant into the court of
the United States for that district.
The parties agreed on a case in the following words:
"John Doe ex dem. Joseph Bartholomew, &c., Trustees of the
Town of Clarksville v. James Hughes."
"The lessors of the plaintiff derive their title to the lands
in
Page 31 U. S. 370
the declaration mentioned, from the State of Virginia, by virtue
of an Act of the General Assembly of said State of Virginia, passed
in the year 1783, and entitled 'an act for surveying and
apportioning the lands granted to the Illinois regiment, and
establishing a town within the said grant,' and also of another act
of the General Assembly of the State of Virginia, passed in the
year 1790, entitled"
"an act to amend an act entitled an act for surveying and
apportioning the lands granted to the Illinois regiment, and
establishing a town within the said grant,"
which said acts are in the words and figures following,
to-wit:
"An act for the locating and surveying the one hundred and fifty
thousand acres of land granted by a resolution of assembly, to Col.
George Rogers Clark, and the officers and soldiers who assisted in
the reduction of the British post in the Illinois. Be it enacted by
the general assembly that William Fleming, John Edwards, John
Campbell Walker Daniel, gentlemen, and George Rogers Clark, John
Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William
Clark, officers in the Illinois regiment, shall be, and they are
hereby constituted a board of commissioners, and that they, or a
major part of them, shall settle and determine the claims to land
under the said resolution. That the respective claimants shall give
in their claims to the said commissioners, on or before 1 April,
1784, and, if approved and allowed, shall pay down to the
commissioners, one dollar for every hundred acres of land, such
claim, to enable them to survey and apportion the said lands. The
said commissioners shall appoint a principal surveyor, who shall
have power to appoint his deputies, to be approved by the said
commissioners, and to contract with him for his fees. That from and
after the 1 April, 1784, the said commissioners, or a major part of
them, shall proceed with the surveyor, to lay off the said hundred
and fifty thousand acres of land on the northwest side of the Ohio
River, the length of which shall not exceed double the breadth, and
after laying out one thousand acres, at the most convenient place
therein for a town, shall proceed to lay out and survey the
residue, and divide the same by fair and equal lots among the
claimants, but no lot or survey shall exceed five hundred acres.
That the said commissioners, in their apportionments
Page 31 U. S. 371
of the said land, shall govern themselves by the allowances made
by law to the officers and soldiers in the continental army. That
the said commissioners shall, as soon as may be, after the said one
hundred and forty-nine thousand acres shall be surveyed, cause a
plat thereof, certified on oath, to be returned to the register's
office, and thereupon a patent shall issue to the said
commissioners, or the survivors of them, who shall hold the same in
trust for the respective claimants, and they, or a major part of
them, shall thereafter, upon application, execute good and
sufficient deeds for conveying the several portions of land to the
said officers and soldiers."
"And be it further enacted that a plat of the said one thousand
acres of land laid off for a town shall be returned by the surveyor
to the Court of the County of Jefferson, to be by the clerk thereof
recorded, and thereupon the same shall be and is hereby vested in
William Fleming, John Edwards, Walker Daniel, John Campbell George
Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey,
Robert Todd, and William Clark, gentlemen, trustees, to be by them,
or any five of them, laid off into lots of half an acre each, with
convenient streets and public lots, which shall be and the same is
hereby established a town by the name of Clarksville. That after
the said land shall be laid off into lots and streets, the said
trustees or any five of them shall proceed to sell the same or so
many as they shall judge expedient at public auction for the best
price that can be had, the time and place of sale being previously
advertised two months, at the courthouses of the adjacent counties,
the purchasers, respectively, to hold their said lots subject to
the condition of building on each a dwelling house twenty feet by
eighteen, at least, with a brick or stone chimney, to be finished
within three years from the day of sale, and the said trustees or
any five of them are hereby empowered to convey the said lots to
the purchasers thereof in fee simple, subject to the condition
aforesaid, and the money arising from such sale shall be applied by
the said trustees in such manner as they shall judge most
beneficial for the inhabitants of said town. That the said trustees
or the major part of them shall have power from time to time to
settle and determine all disputes concerning the bounds of said
lots and to settle such rules and orders for the regular
building
Page 31 U. S. 372
thereon as to them shall seem best and most convenient, and in
case of death, removal out of the county, or other legal disability
of any of the said trustees, the remaining trustees shall supply
such vacancies by electing others from time to time who shall be
vested with the same powers as those particularly nominated in this
act. The purchasers of the said lots, so soon as they shall have
saved the same according to their respective deeds of conveyance,
shall have and enjoy all the rights, privileges, and immunities
which the freeholders and inhabitants of other towns, in this
state, not incorporated, hold and enjoy. If the purchaser of any
lot shall fail to build thereon within the time before limited, the
said trustees, or a major part of them, may thereupon enter into
such lot, and may either sell the same again and apply the money
towards repairing the streets or in any other way for the benefit
of the said town or appropriate such lot to the public use of the
inhabitants of the said town."
"An act to amend an act entitled 'An act for surveying and
apportioning the lands granted to the Illinois regiment, and
establishing a town within the said grant,' passed 10 December,
1790. Be it enacted by the general assembly that so much of the act
entitled 'an act for surveying and apportioning the lands granted
to the Illinois regiment, and establishing a town within the said
grant' as requires that one thousand acres of land for a town shall
be laid off into half acre lots, and each to be improved by
building, subject to the condition of building on each a dwelling
house twenty feet by eighteen at least, with a brick chimney, to be
finished within three years from the day of sale, is hereby
repealed."
"The trustees of the said town are hereby directed to convey to
those who have already purchased a lot or lots in said town, titles
in fee simple, although the said lots may not have been improved
agreeably to the requisitions of the said recited act."
"And be it further enacted, that the said trustees, or any five
of them, are authorized and required to sell at public auction the
residue of the said one thousand acres of land, for the best price
that can be had for the same at twelve months' credit, in lots not
exceeding twenty acres, nor less than half an acre, taking from the
purchasers bond, with approved security, for the payment thereof,
and when received, to be applied to the
Page 31 U. S. 373
benefit of the said town, notice of the time and place of such
sale being previously advertised two months successively in the
Kentucky Gazette."
"And be it further enacted, that the said trustees shall convey
to the said purchasers titles in fee, and that the said lots shall
not be liable to forfeiture on account of any failure in improving
the same, but that the titles thereof shall be absolute and
unconditional, anything in the said recited act to the contrary
notwithstanding."
In pursuance of the act first above recited, the board of
commissioners thereby constituted appointed William Clark principal
surveyor and proceeded to lay off the one hundred and fifty
thousand acres of land, and laid off for a town the said one
thousand acres of land, a plat of which was, by the said surveyor,
returned to the Court of the County of Jefferson, to be by the
clerk thereof recorded, which survey and return is in the words and
figures following, to-wit, and of which survey the annexed map is
substantially a copy, upon which the land in controversy is
correctly represented between the letters X and Y, and between two
dotted lines upon the margin of the river (plat omitted).
"Surveyed one thousand acres of land on the northwest side of
the Ohio River for the Town of Clarksville, agreeably to an act of
the assembly entitled 'An act for the surveying and apportioning
the lands granted to the Illinois regiment and establishing a town
within the said grant.' Beginning on the bank of the Ohio River at
a small white thorn, white oak, and hickory a little below the
mouth of Silver Creek; running thence north, crossing Silver Creek
twice, one hundred and seventy poles, to a sweet gum, beech, and
sugar tree; thence east, crossing said creek again, three hundred
and twenty-six poles, to three beeches; thence south 40� east,
eighty-six poles, to a beech and sugar tree; thence one hundred and
seventy-six poles to a large sweet gum, sugar tree, and dogwood, on
the bank of Mill Creek; thence south, crossing said creek, one
hundred and eighty poles, to a sugar and two ash trees; thence
east, one hundred and fifty-eight poles, to three beeches; thence
south, crossing Pond creek, two hundred and eighty poles, to
Page 31 U. S. 374
the Ohio, at two white ashes and two hickory trees; thence down
the Ohio River, with its meanders, to the beginning."
"W. CLARK, P.
Surveyor"
The said trustees, named in the above recited act, entered upon
the said one thousand acres of land and had the same laid off into
streets and lots, and sold a part of the same, and as vacancies
occurred by death, removal out of the county, or otherwise, the
remaining trustees supplied such vacancies by electing others, from
time to time, so that on 1 July, 1827, the said lessors of the said
plaintiff, to-wit, Joseph Bartholomew, John Prather, Willis W.
Goodwin, Andrew Fite, John Weathers, William D. Beach, Charles
Euller, Orlando Raymond, Isaac Howk, and Peter Bottorff, were the
trustees of Clarksville, by being duly elected, from time to time,
under the provisions of the above recited act.
At a meeting of the board of trustees of the Town of Clarksville
on 18 March, 1803, the following resolution was adopted by the
board, and entered on the book of their proceedings, to-wit:
"The trustees, taking into consideration the great advantage
that would result to the trustees of the Town of Clarksville and
the public in general, by opening a canal round the falls of the
Ohio, on the application of George Rogers Clark, it is resolved by
the board, that the rights, privileges and advantages of the ground
between the front lots on the Ohio, and the Ohio from the upper
line of the Town of Clarksville, adjoining Isaac Bowman's lot, No.
1, in the Illinois grant, to the mouth of Mill Creek, be
exclusively granted to William Clark, his heirs and assigns, to be
appropriated to the use of opening a canal through any part of said
slip of land on which to erect mills, wharfs, store houses, or any
kind of water works that may be of public utility, or for the
erection of gates, locks, &c., for the passage of boats,
vessels, &c., reserving, however, between the south and
eastwardly line of said front lots and the canal, the distance of
thirty feet, for which privilege, the said William Clark, his heirs
and assigns, are to pay the trustees or their successors one
percent on the production of all water works that may be erected on
said canal, and five percent on the toll of all kind of craft that
may pass through the said canal. Provided, however, that the said
William Clark, his heirs and assigns, do complete the said
Page 31 U. S. 375
canal for the erection of water works, within seven years from
this day."
At a meeting of the trustees of the Town of Clarksville, on 5
December, 1807, the following order and resolution was adopted by
said trustees, and also entered on their book of proceedings,
to-wit:
"A memorial from William Clark, praying that the trustees will
prolong the time for his complying with the conditions of a grant
made to him by a former board of trustees on 18 March, 1803, of a
slip of ground from the upper part of the town to the mouth of Mill
Run, was read. On motion it was resolved that a further time of
three years be allowed for complying with the condition of said
grant, on condition that the said William Clark, his heirs,
&c., shall relinquish, under the former grant, the distance of
thirty feet, reserved for a street between the front lots and any
canal that may be opened, making a space of sixty feet the whole
distance between such canal and said front lots, and that the
former grant shall not extend further than to the lower basin, and
that the said William Clark, his heirs, &c., shall bind
himself, his heirs, &c., to build and keep up good and
sufficient bridges across said canal at the intersection of every
cross street, and to erect, within the period mentioned, to-wit, by
18 March, 1813, a mill or mills, to be of public utility, or open a
canal agreeably to the conditions of the former grant, and to
reserve to the trustees the stone in the river not necessary for
the uses of effecting and continuing the improvements therein
contemplated."
On 21 November, 1810, an act of the general assembly of the
Territory of Indiana was passed in the words and figures following,
to-wit:
"An act for the relief of Daniel Fetter, James Hughes and
Solomon Fuller."
"Whereas it has been represented to the general assembly of this
territory, by sundry petitions and other documents, that by the act
of the State of Virginia incorporating the Town of Clarksville in
this territory, the trustees thereof were authorized to dispose of
the land upon which said town was laid off in half acre lots, at
public auction or otherwise, as they might think proper, and
whereas the said trustees, by their orders and resolutions, did
dispose of a certain part of said town to General William Clark, in
fee conditional, who transferred the
Page 31 U. S. 376
same to the aforesaid Fetter, Hughes and Fuller, and whereas it
seems to have been the intention of the Legislature of Virginia to
subject the lots and land whereon the said Town of Clarksville was
laid off, to the control and disposition of the trustees of the
said town, who, for the benefit of the proprietors therein, and for
the interest of the public at large, did dispose
en masse
in the manner aforesaid of a number of lots, and it appearing by
the memorial of the said Fetter, Hughes, and Fuller that the
intention is to erect, for the public utility and convenience,
mills, and other water works on the said ground: "
"SEC. 1. Therefore, be it enacted by the Legislative Council and
House of Representations, and it is hereby enacted by the authority
of the same, that the said Daniel Fetter, James Hughes, and Solomon
Fuller, their heirs and assigns, be, and they are hereby
considered, and shall be taken, deemed, and holden as the legal and
equitable proprietors of the lots and land contained in the orders
and resolutions of the said board of trustees, and the deed of
transfer thereof from the said William Clark, subject nevertheless
to the terms and conditions upon which the same was granted by the
said board of trustees to the said William Clark."
Passed November 21, 1810.
The said William Clark, prior to the passage of the act last
above recited, had transferred his interest in and to the said
slips of land, mentioned in said resolutions of the said trustees
of Clarksville, to the said Fetter, Hughes, and Fuller, and some of
the persons composing the board of trustees of Clarksville at that
time, individually signed the petition of said Fetter, Hughes, and
Fuller to the said general assembly, for the passage of the above
recited act.
Fetter, Hughes, and Fuller entered upon the said slip of land
under the aforesaid orders and resolutions of said trustees and
erected thereon, on the margin of the Ohio River, a saw mill, with
a pair of mill stones for grinding, in the fall of the year 1810,
which mill was shortly after swept away by the floods. That in the
year 1812, they erected and put into operation a grist mill of
public utility on the same slip of land, and on the margin of the
Ohio River, which remains unto this day; that to furnish a head of
water for said mill, they cut through a ridge of rock in the bed of
said river, lying between a channel of said river next the shore
and an outer channel,
Page 31 U. S. 377
by which the water from the outer channel was brought into the
channel next the shore, and that they expended in making said
improvements from twelve to twenty thousand dollars.
At a meeting of the board of trustees of the Town of
Clarksville, on 17 December, 1816, the following resolution was
adopted and entered on the book of said trustees, to-wit:
"On motion of Willis W. Goodwin, resolved, that the clerk of
this board be directed to call on Messrs Fetter and Hughes,
assignees of William Clark, and inform them that it is the request
of this board that they do make out and exhibit, at our next
meeting, an accurate statement of all the productions of the water
works, mills, canals, &c., erected on the slip of ground
granted them by the trustees of Clarksville, since their
commencement to the present date, and that the same be supported by
affidavit."
At a meeting of the said board of trustees on 18 August, 1817,
the following entry and order were made by said trustees, on the
book of their proceedings, to-wit:
"Messrs Fetter and Hughes produced to this board a statement of
the quantity of flour manufactured at their mills, on the slip of
ground granted to them by the trustees of the Town of Clarksville,
from the commencement to 1 January, 1817, showing the net proceeds
thereon, by which it appears they are indebted to the trustees the
sum of sixty-nine dollars ten and a half cents, and it was ordered
that they pay the same to the clerk of this board."
"Shortly after the making of the order last above recited, the
said Fetter and Hughes paid to the clerk of the said board of
trustees the sum of sixty-nine dollars ten and a half cents, in
pursuance of said order. The said Fuller duly transferred his
interest in said slip of land and appurtenances to said Fetter and
Hughes, and said Fetter transferred his interest in the same to
said Hughes, defendant herein, who, at the time of the commencement
of this suit, was in possession of said slip of land and
appurtenances; the said slip of land is a part of the one thousand
acres laid off for a town, as above stated, and delineated on the
map aforesaid, and is the land in the plaintiff's declaration
mentioned, and the said trustees of the Town of Clarksville, on 1
September, 1826, duly notified the said defendant to quit the
possession of said slip of
Page 31 U. S. 378
land and appurtenances, on or before 18 March then next, and
defendant refused, and still refuses to quit possession thereof. It
is agreed that the parties and the court shall not be precluded by
this statement of facts from inferring the existence of such other
facts as may reasonably and properly be deduced from those
stated."
The district court rendered judgment in favor of the plaintiffs
in the ejectment, and that judgment is now before this Court on a
writ of error.
Questions both new and intricate have arisen in this cause, and
the doubts we have entertained respecting some of them were not
easily removed.
The plaintiffs in error deny that the act of 1783, from which
the trustees derive their title, could pass any legal estate to
them in the lands which are the subject of it.
The act appoints commissioners who are to proceed with the
surveyor, from and after 1 April, 1784, to lay off the said one
hundred and fifty thousand acres of land on the north west side of
the Ohio River, and after laying out one thousand acres at the most
convenient place therein for a town, shall proceed to lay out and
survey the residue, and to divide the same by fair and equal lots
among the claimants. A plat of the survey of the one hundred and
forty-nine thousand acres thus to be divided is, when completed, to
be returned to the register's office,
"and thereupon a patent shall issue to the said commissioners,
or the survivor or survivors of them, who shall hold the same in
trust for the respective claimants."
They are directed to execute deeds, &c.
This act empowers the commissioners to receive the claims of the
several officers and soldiers of the Illinois regiment and to cause
the survey to be made, but no legal estate passes to them until the
patent shall be issued on the survey. The date of the patent does
not appear, but the survey on which it was to be issued could not
be made until after 1 April, 1784, and consequently the patent must
have been issued on a subsequent day.
The law further enacts that a plat of the said one thousand
acres directed to be laid off for a town shall be returned by the
surveyor to the Court of the County of Jefferson, to be by the
clerk thereof recorded, and thereupon the same shall be and is
Page 31 U. S. 379
hereby vested in William Fleming, &c., trustees, to be by
them or any five of them laid off into lots, &c.
The time when this plat was returned is not stated, but it must
have been after the 1st of April 1784.
Previous to that day, in December, 1783, Virginia passed an act
ceding the territory she claimed northwest of the River Ohio to the
United States, and the deed of cession was executed on 1 March,
1784. This deed contains the following among other
reservations:
"That a quantity not exceeding one hundred and fifty thousand
acres of land promised by this state shall be allowed and granted
to the then colonel, now General George Rogers Clark, and to the
officers and soldiers of his regiment who marched with him when the
posts of Kaskaskia and St. Vincent were reduced, and to the
officers and soldiers that have been since incorporated into the
said regiment, to be laid off in one tract, the length of which not
to exceed double the breadth, in such place on the northwest side
of the Ohio as a majority of the officers shall choose, and to be
afterwards divided among the said officers and soldiers in due
proportions according to the laws of Virginia."
The plaintiff in error contends that as the State of Virginia
had conveyed all her territory northwest of the River Ohio to the
United States before any legal title was vested in the
commissioners or trustees appointed by the act of 1783, the title
at law was vested in the United States, and could pass only from
them. That the reservation in favor of Clark's regiment, is not an
exception of so much land from the deed of cession, but a
stipulation that Congress shall comply with the promise made by
Virginia to that regiment. Consequently that the plaintiffs in
ejectment had no legal title.
Had the court been required to expound these laws immediately
after the deed of cession was executed, it is probable that the
construction made by the plaintiff in error would have been
adopted. But the opposite construction has prevailed, and all the
titles in that reserve depend upon it. It is too late to controvert
it.
The title of the plaintiffs in ejectment has been contested on
other ground, which is more tenable.
The act directs the plat for the town to be returned to the
office of Jefferson to be recorded, and declares that
"Thereupon
Page 31 U. S. 380
the same shall be and is hereby vested in William Fleming,
&c., trustees, to be by them or any five of them laid off into
lots of half an acre each, with convenient streets and public lots,
which shall be and the same is hereby established a town by the
name of Clarksville."
The act proceeds to prescribe the duties and the powers of the
trustees. They are to sell the lots in the manner and on the
conditions required by the law, to convey them to the purchasers,
to determine all disputes concerning their bounds, and to settle
rules and orders for regular building thereon. This enumeration of
duties and powers is concluded with the following provision:
"And in case of death, removal out of the country, or other
legal disability of any of the said trustees, the remaining
trustees shall supply such vacancies by electing others from time
to time, who shall be vested with the same powers as those
particularly nominated by this act."
It is also enacted that
"If the purchaser of any lot shall fail to build thereon within
the time before limited, the said trustees, or a major part of
them, may thereupon enter into such lot and may either sell the
same again, . . . or appropriate such lot to the public use of the
inhabitants of the said town."
The legal title is undoubtedly vested in William Fleming and the
other persons who are named as trustees of the town. The possession
of this legal estate, however, would not have enabled them to
perform the various acts which were necessary to the accomplishment
of the object of the legislature. The thousand acres intended as a
town is to be laid out by these persons in their character of
commissioners, and after the plat thereof shall be recorded, it is
vested in them by name, after which the law prescribes their duties
and powers. These are expressly enumerated. They do not grow out of
the estate, but are conferred by the words of the act. Had the
title been vested in other persons, the same powers might have been
conferred on and exercised by the trustees of the town. No one of
their powers depends on their possessing the legal title. They
might lay off the town in lots and streets, sell and convey the
lots, determine their boundaries, and settle rules and orders for
the regular building thereon, although the mere title should reside
in others. The legal title is not identified with these powers, or
connected with them by the words of
Page 31 U. S. 381
the law. The grantees are made trustees, but they receive the
grant as individuals, and the mere legal estate must descend
according to the law of descents unless otherwise directed by the
particular statute.
No one of the persons in whom the land is vested by the act, nor
any person claiming title under anyone of them, is a party to this
ejectment. The inquiry then is has the legal title, which was
vested in William Fleming and others, been divested by the act and
transferred to the defendants in error? This must be determined by
the act itself. The words are
"in case of death, &c., of any of the trustees, the
remaining trustees shall supply such vacancies by electing others
from time to time, who shall be vested (not with the same estate,
but) with the same powers as those particularly nominated in this
act."
If the estate be not indispensable to the existence or exercise
of the powers, and we think it is not, if the powers do not grow
out of the estate, but are conferred by special words in the act,
no necessity is perceived for supplying words which are not used in
the act and implying a transfer of the estate which the legislature
has not made. It is unquestionable that no inconvenience would
result from such a construction, and we may conjecture that had it
occurred to the legislature that the transfer of the estate to the
new trustees might be useful, it would have been directed; but we
cannot do that which the law has not done. We cannot take a trust
estate from William Fleming and others, and vest it in their
successors as trustees when the law does not make the transfer.
It is probable that the legislature contemplated the immediate
execution of the powers conferred by the act, which would transfer
the legal estate to the purchasers. They do not appear to have
contemplated the permanent residence of the legal estate in the
body of the trustees for the purposes of the act. If the trustees
were to do anything in virtue of the estate, and not of their
special powers, we might expect it to be a reentry for breach of
the condition contained in the deeds they made. Yet after providing
for their continuance, even this power is expressly given to them.
The legislature appears to have lost sight of the legal estate and
to have relied entirely on the powers given to the trustees and
their successors for the accomplishment of their object. The powers
are given to the
Page 31 U. S. 382
trustees and their successors; the estate is not given to their
successors. We do not think the grant of the powers draws after it
the estate. If any use is to be made of the estate which cannot be
effected by the employment of the powers, it still remains, we
think, in the original grantees or their heirs. If any part of the
one hundred and forty-nine thousand acres has not been conveyed,
the title to such part remains in the same persons. The
inconvenience of resorting to the holders of the legal title is the
same in both case.
The Court has not come to this conclusion without considerable
doubt and difficulty, but pursuing the words of the statute and
finding in them no transfer of the estate, we must consider it as
remaining where it was placed by the legislature.
The trustees contend that the defendants below were estopped
from denying their title, by the agreement of 18 March, 1803. The
legal effect of that agreement, they say, was to create a tenancy
from year to year, and consequently to establish the relation of
landlord and tenant between the trustees and those who claim under
it.
That a lessee will not be allowed to deny the title of his
lessor, is admitted; but it is not admitted that a contract
executed for the purpose of conveying and acquiring an estate in
fee, but wanting those legal formalities which are required to pass
the title, may be converted into an agreement contemplated by
neither party; and by this conversion estop the purchaser, while it
leaves the seller free to disregard his express stipulations.
The resolutions entered into by the board of trustees on 18
March, 1803, constitute a contract which was intended by all
parties to invest William Clark with a permanent estate. The
trustees resolve "that the rights, privileges and advantages of the
ground" described in the resolution
"be exclusively granted to William Clark, his heirs and assigns,
to be appropriated to the use of opening a canal through any part
of the said slip of land, on which to erect mills, wharfs,
storehouses, or any kind of waterworks that may be of public
utility, or for the erection of gates, locks, &c., for the
passage of boats, vessels, &c."
For this privilege the trustees reserved
"one percent on the production of all waterworks that may be
erected on the said canal, and five percent on the toll of all kind
of craft that may pass through said canal."
To this
Page 31 U. S. 383
grant was annexed this provision.
"Provided, however, that the said William Clark, his heirs and
assigns, do complete the said canal for the erection of water works
within seven years from this day."
This time was afterwards extended to ten years.
The assignees of William Clark took possession of the premises
under this agreement and sold to others, who have expended from one
to two thousand dollars on the work, and have erected a saw mill,
which has been carried away; and a grist mill, which is now in
operation, and of great public utility.
It is impossible to doubt the intention of the parties to this
contract. The grant for which the trustees stipulate is to William
Clark, his heirs and assigns. A tenancy from year to year, is
directly repugnant to this stipulation. The money to be expended on
the great works in contemplation, is entirely inconsistent with any
other than a permanent estate. The views of the parties are
entirely defeated; the contract is annulled by treating it as one
which the trustees might determine at their will or at the end of
any year. Had the contract been clothed with legal form by the
execution of a deed, such deed would have conveyed an estate to
William Clarke, his heirs and assigns. The reservation of the
percentage on the building and canal as the consideration of the
grant instead of a sum in gross could not affect the permanence of
the estate. The trustees could not have maintained an ejectment
after the execution of such deed unless some one of the conditions
contained in it on which a right to reenter was reserved should be
broken, which breach it would be incumbent on the plaintiffs in
ejectment to show. Had these resolutions then amounted to a deed,
or had the trustees placed the purchaser, in point of law, in the
situation in which both parties intended by the contract to place
him, this ejectment could not have been maintained on any other
principle than the breach of some condition in the deed which
authorized a reentry.
But a legal title has not been made, and those who claim under
the contract cannot defend their possession by it in this action.
The trustees themselves deny its validity for this purpose, and
assert a title in opposition to it. While they would turn the
purchaser out of possession, because this
Page 31 U. S. 384
contract has no legal operation in this action, they would give
it a legal obligation on the defendant in the ejectment, which is
to restrain him from making a defense which would protect his
equitable rights under it. The contract binds him, but leaves them
at perfect liberty. The moral policy of the law cannot permit this.
It is forbidden by the clearest principles of justice. The case of
Blight's Lessee v. Rochester, 7 Wash. 534, asserts this
doctrine in a case nearly resembling this. The plaintiff claimed
under John Dunlap, whose title was not valid, but he insisted that
the defendant must trace his title up to Dunlap, and therefore
could not contest it. The court said,
"if he claims under a sale from Dunlap, the plaintiffs
themselves assert a title against this contract. Unless they show
that it was conditional, and that the condition is broken, they
cannot, in the very act of disregarding it themselves, insist that
it binds the defendant, in good faith, to acknowledge a title which
has no real existence."
Upon the authority of this case and upon the sound principles of
morality and justice which belong to the law, we do not think that
the plaintiffs, while asserting a title against their contract, can
be permitted to insist that the same contract binds the defendant
to admit their title.
This opinion is founded on the idea that the action is brought
to obtain possession against the contract, not for any failure to
perform its conditions. The trustees themselves do not place their
right to reenter and hold the premises on that ground. The case
does not state a reentry for conditions broken, nor does it show
expressly that any condition has been broken. If it be admitted
that William Clark or his assignees would in this case be bound to
acknowledge the title of the trustees, provided the trustees, on
their part, acknowledge the obligation of their resolutions on
themselves, it becomes necessary to inquire whether the conditions
contained in those resolutions have been broken. What are those
conditions?
The resolutions are not drawn with such distinctness as to make
the object of the parties clearly intelligible or to show the
extent of the engagements into which Clark entered so as not to be
misunderstood.
They are introduced by a preamble stating the "advantages that
would result" "by opening a canal round the falls of the
Page 31 U. S. 385
Ohio." They then proceed to say,
"On the application of George Rogers Clark, it is resolved by
the board that the rights, privileges and advantages of the ground
between the front lots on the Ohio, and the Ohio from the upper
line of the Town of Clarksville . . . to the mouth of Mill Creek be
exclusively granted to William Clark, his heirs and assigns, to be
appropriated to the use of opening a canal through any part of said
slip of land on which to erect mills, wharfs, store houses, or any
kind of water works that may be of public utility, or for the
erection of gates, locks, &c., for the passage of boats,
vessels, &c."
The preamble undoubtedly indicates that the trustees
contemplated "the advantage which would result from a canal round
the falls," but whether they meant to bind Clark to make the whole
of that canal is to be determined by the resolutions declaring the
purposes of the grant to him.
The canal which Clark was to make was, it is presumed, to be
made through the ground ceded to him by the trustees. This extends
to the mouth of Mill Creek. The case does not state whether Mill
Creek empties into the Ohio below the falls. If it does not, this
fact would go far in the construction of the resolutions. If it
does, the fact, or something equivalent, should be shown in the
case.
The resolutions add that the rights, &c., exclusively
granted
"are to be appropriated to the use of opening a canal through
any part of the said slip of land, on which to erect mills, wharfs,
storehouses, or any kind of water works that may be of public
utility."
This canal is "to pass through any part of the said slip of
land," but is not required to pass through the whole of it, and to
empty into the river at the mouth of Mill Creek. Its expressed
purpose is to erect mills, wharfs, &c., but the erection of all
of them is not required, nor is the grantee himself required to
erect any of them. The canal is to be adapted to the purpose, and
if it be so adapted, the requisition of the resolution is complied
with. An alternative application of the canal is allowed. The
resolution proceeds to say, "or for the erection of gates, locks,
&c., for the passage of boats, vessels, &c." These two
members of the resolutions are not connected by the copulative
"and," but by the disjunctive "or."
Page 31 U. S. 386
The resolution does not require that the canal should be fitted
for both purposes, but is satisfied if it be fitted for either.
The limitation of time is
"provided, however, that the said William Clark, his heirs and
assigns, do complete the said canal, for the erection of water
works, within seven years from this day."
Clark and his assignees are within the requirement of the
proviso, if they complete the canal for the erection of water works
within seven years; though no works of any description should be
erected.
At a meeting of the trustees held in December 1807, this subject
was again taken up. A further time of three years was allowed, on
condition, among other things, that the former grant shall not
extend further than to the lower basin, and that the said William
Clark shall bind himself, his heirs, &c.,
"to build and keep up good and sufficient bridges across said
canal, at the intersection of every cross street, and to erect
within the period mentioned, to-wit by 18 March, 1813, a mill or
mills to be of public utility, or open a canal agreeably to the
conditions of the former grant, &c."
The alternative is given to Clark and his assigns, either to
build a mill or mills to be of public utility or open the
canal.
The case states that the mill was erected, which remains to this
day. It also states, that in December, 1816, the trustees called on
the assignees of William Clark for a statement of the production of
the water works, which account was rendered, and the money
appearing to be due on it was paid. We are not informed that there
was any subsequent failure in the payment of the money which became
due under the contract. We are not, therefore, at liberty to
suppose that the conditions of the contract have been broken on the
part of Clark's assignees. The trustees, then, to sustain this
ejectment, must consider themselves as absolved from the contract.
acting upon this principle, they cannot set it up against the
plaintiffs in error. They cannot be permitted, while denying its
obligation on themselves, to enforce it on others. Both are free,
or both are bound. We are of opinion that the plaintiffs in error
were at liberty in this case to controvert the title set up by the
trustees in the court below.
The assignees of Clark have relied upon an act of the
territorial Legislature of Indiana, passed in November, 1810,
Page 31 U. S. 387
supplying the want of a conveyance, and declaring the assignees
of the said Clark to be
"the legal and equitable proprietors of the lots and land
contained in the orders and resolutions of the said board of
trustees, . . . subject, nevertheless, to the terms and conditions
upon which the same was granted."
We do not mean to deny the right of the legislature to modify
the future exercise of the powers possessed by the trustees of the
Town of Clarksville; provided they do not impair vested rights; but
we are not prepared to decide this case on an act which changes the
character and operation of a contract after it has been made.
This case has been decided in the state court of Indiana, and is
reported in 1 Blatchford 422. This Court has considered that
decision with the respect to which it is justly entitled. In that
case the court did not examine and decide on the legal title of the
trustees, because legal effect was given to the contract so far as
to defeat the action. The relation of landlord and tenant,
therefore, was preserved between the parties, and bound both. That
relation defeated the plaintiff's action, though it estopped the
defendants from controverting his title. Notwithstanding the plain
meaning of the contract made by the resolutions of March, 1803, to
grant a permanent estate; yet that contract, though incapable of
passing an estate at law to the extent intended, was capable of
passing at law an estate from year to year, and in that action
might be so construed. The necessary effect of this construction
was the admission of the title of the lessor; but in this action no
legal effect whatever is given to the contract, and it cannot
therefore estop the defendant from contesting the title asserted in
hostility to it. We do not consider the case as depending on local
law.
We are of opinion that the plaintiff below did not show title to
the possession of the premises claimed in the declaration, and that
there is error in the judgment of the Court for the District of
Indiana in his favor.
That judgment is reversed, and judgment entered for the
defendant.
MR. JUSTICE BALDWIN dissented.
Page 31 U. S. 388
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Indiana, and was argued by counsel, on consideration whereof it is
the opinion of this Court that the plaintiff below did not show
title to the possession of the premises claimed in the declaration,
and that there is error in the judgment of the court for the
District of Indiana in his favor, whereupon it is ordered and
adjudged by this Court, that the judgment of the said district
court in this cause be, and the same is hereby reversed, and that
this cause be, and the same is hereby remanded to the said district
court with directions to that court to enter judgment for the
defendant below.