THIS was an ejectment brought for a tract of land, lying north
and west of the rivers Ohio and Alleghany, and Conewango creek. The
lessor of the plaintiff made title under the Holland company, to
whom a patent was issued, upon a warrant and survey. The defendant
claimed as an actual settler, under the act of the 3d of April
1792. A great many ejectments were depending upon the same facts
and principles;1 and on the trial, of another ejectment, at a
former term, WASHINGTON, Justice, had delivered a charge to the
jury, coinciding, generally, with the construction given by the
Supreme Court of Pennsylvania, to the act of April 1792, from which
Judge PETERS dissented. It was, therefore, upon the recommendation
of the Court, determined to submit the questions, upon which the
opinions of the Judges were opposed, to the Supreme Court of the
United States, under the provision made, in case of such a
disagreement, by the act of the 29th of April 1802. 6 vol. 89. s.
6. The questions were, accordingly, stated, at the last October
term, in the following form:
'1st. Whether under the act of the
legislature of Pennsylvania passed on the 3d day of April 1792,
entitled 'an act for the sale of the vacant lands within this
commonwealth:' the grantee by warrant of a tract of land lying
'north and west of the
Page 4 U.S.
392, 393
rivers Ohio and Alleghany, and Conewango week,' who, by force of
arms of the enemies of the United States, was prevented from
settling and improving the said land, and from residing thereon,
from the 10th day of April 1793, the date of the said warrant,
until the 1st day of January 1796, but who, during the said period,
persisted in his endeavours to make such settlement and residence,
is excused from making such actual settlement, as the enacting
clause of the 9th section of the said law prescribes, to vest a
title in the said grantee.
'2d. Whether a warrant for a tract of
land, lying north and west of the rivers Ohio and Alleghany, and
Conewango creek, granted in the year 1793, under, and by virtue of
the act of the legislature of Pennsylvania, entitled 'An Act for
the sale of vacant lands, within this commonwealth,' to a person,
who by force of arms of the enemies of the United States, was
prevented from settling and improving the said land, and from
residing thereon, from the date of the said warrant, until the
first day of January 1796, but who, during the said period,
persisted in his endeavours to make such settlement and residence,
vests any, and if any, what title in or to the said land, unless
the said grantee shall after the said prevention ceases, commence,
and within the space of two years thereafter clear, fence and
cultivate, at least two acres contained in his said survey, erect
thereon a messuage for the habitation of man, and reside or cause a
family to reside thereon, for the space of five years next
following his first settling the same, the said grantee being yet
in full life.
'3d. Whether a grantee in such
warrant as aforesaid, who has failed to make such settlement as the
enacting clause of the said ninth section requires, and who is not
within the benefit of the proviso, has thereby forfeited his right
and title to the said land, until the commonwealth has taken
advantage of the said forfeiture, so as to prevent the said grantee
from recovering the possession of said land in ejectment, against a
person who, at any time after two years from the time the
prevention ceased, or at any subsequent period, has settled and
improved the said land and has ever since been in possession of the
same.'
The questions were argued in the Supreme Court, at February term
1805, by E. Tilghman, Ingersoll, Lewis and Dallas, for the
plaintiff; and by M'Kean (attorney general of Pennsylvania) and W.
Tilghman, for the defendant.
The opinion of the Court was delivered by the Chief Justice, in
the following manner.
MARSHALL, Chief Justice.
The questions which occurred in this case, in the Circuit Court
of Pennsylvania, and on which the opinion of this court is
required, grow out of the act passed by
Page 4 U.S.
392, 394
the legislature of that state, entitled 'An Act for the sale of
the vacant lands within this commonwealth.'
The ninth section of that act, on which the case principally
depends, is in these words: 'And be it further enacted by the
authority aforesaid, that no warrant or survey, to be issued or
made in pursuance of this act, for lands lying north and west of
the rivers Ohio and Alleghany and Conewango creek, shall vest any
title in or to the lands therein mentioned, unless the grantee has,
prior to the date of such warrant, made, or caused to be made, or
shall, within the space of two years next after the date of the
same, make, or cause to be made, an actual settlement thereon, by
clearing, fencing and cultivating at least two acres for every
hundred acres contained in one survey, erecting thereon a messuage
for the habitation of man, and residing, or causing a family to
reside thereon, for the space of five years next following his
first settling the same, if he or she shall so long live; and that
in default of such actual settlement and residence, it shall and
may be lawful to and for this commonwealth to issue new warrants to
other actual settlers for the said lands, or any part thereof,
reciting the original warrants, and that actual settlements and
residence have not been made in pursuance thereof, and so as often
as defaults shall be made, for the time and in the manner
aforesaid, which new grants shall be under and subject to all and
every the regulations contained in this act. Provided always,
nevertheless, that if any such actual settler, or any grantee in
any such original or succeeding warrant, shall by force of arms of
the enemies of the United States, be prevented from making such
actual settlement, or be driven therefrom, and shall persist in his
endeavours to make such actual settlement as aforesaid, then, in
either case, he and his heirs shall be entitled to have and to hold
the said lands, in the same manner as if the actual settlement had
been made and continued.'
The questions to be considered, relate particularly to the
proviso of this section; but, to construe that correctly, it will
be necessary to understand the enacting clause, which states what
is to be performed by the purchaser of a warrant, before the title
to the lands described therein, shall vest in him.
Two classes of purchasers are contemplated.
The one has already performed every condition of the sale, and
is about to pay the consideration money; the other pays the
consideration money in the first instance, and is, afterwards, to
perform the conditions. They are both described in the same
sentence, and, from each, an actual settlement is required as
indispensable to the completion of the title. In describing this
actual settlement, it is declared that it shall be made in the case
of a warrant previously granted, within two years next after the
date of such warrant, 'by clearing, fencing, and cultivating at
least
Page 4 U.S.
392, 395
two acres for every hundred acres contained in one survey,
erecting thereon a messuage for the habitation of man, and residing
or causing a family to reside thereon for the space of five years
next following his first settling of the same, if he or she shall
so long live.'
The manifest impossibility of completing a residence of five
years within the space of two years, would lead to an opinion, that
the part of the description relative to residence, applied to those
only who had performed the condition before the payment of the
purchase money, and not to those who were to perform it afterwards.
But there are subsequent parts of the act, which will not admit of
this construction, and, consequently, residence is a condition
required from the person who settles under a warrant, as well as
from one who entitles himself to a warrant by his settlement.
The law, requiring two repugnant and incompatible things, is
incapable of receiving a literal construction, and must sustain
some change of language to be rendered intelligible. This change,
however, ought to be as small as possible, and with a view to the
sense of the legislature, as manifested by themselves. The reading,
suggested by the counsel for the plaintiff, appears to be most
reasonable, and to comport best with the general language of the
section, and with the nature of the subject. It is by changing the
participle into the future tense of the verb, and instead of 'and
residing or causing a family to reside thereon,' reading, and shall
reside, &c. The effect of this correction of language, will be
to destroy the repugnancy which exists in the act as it stands, and
to reconcile this part of the sentence to that which immediately
follows, and which absolutely demonstrates that, in the view of the
legislature, the settlement and the residence consequent thereon,
were distinct parts of the condition; the settlement to be made
within the space of two years from the date of the warrant, and the
residence in five years from the commencement of the
settlement.
This construction is the more necessary, because the very words
'such actual settlement and residence,' which prove that residence
is required from the warrantee, prove, also, that settlement and
residence are, in contemplation of the law, distinct operations. In
the nature of things, and from the usual import of words, they are,
also, distinct. To make a settlement, no more requires a residence
of five, than a residence of five hundred, years: and, of
consequence, it is much more reasonable to understand the
logislature as requiring the residence for that term, in addition
to a settlement, than as declaring it to be a component part of a
settlement.
The meaning of the terms, settlement and residence, being
understood, the Court will proceed to consider the proviso.
Page 4 U.S.
392, 396
That part of the act treats of an actual settler, under which
term is intended as well the person who makes his settlement the
foundation of his claim to a warrant, as a warrantee, who had made
an actual settlement in performance of the conditions annexed to
his purchase, and if 'any grantee in any such original or
succeeding warrant,' who must be considered as contradistinguished
from one who had made an actual settlement. Persons thus distinctly
circumstanced, are brought together in the same sentence, and terms
are used appropriated to the situation of each, but not applicable
to both. Thus, the idea of 'an actual settler,' 'prevented from
making an actual settlement,' and, after 'being driven therefrom,'
'persisting in his endeavours' to make it, would be absurd. To
apply to each class of purchasers, all parts of the proviso, would
involve a contradiction in terms. Under such circumstances, the
plain and natural mode of construing the act, is to apply the
provisions, distributively, to the description of persons to whom
they are adapted, reddendo singula singulis. The proviso, then,
would read, thus, 'Provided always, nevertheless, that if any such
actual settler, shall be driven from his settlement, by force of
arms of the enemies of the United States; or any grantee, in any
such original or succeeding warrant, shall by force of arms of the
enemies of the United Stutes, be prevented from making such actual
settlement, and shall persist in his endeavours, to make such
actual settlement as aforesaid, then, in either case, he and his
heirs shall be entitled to have and to hold the said lands, in the
same manner as if the actual settlement had been made and
continued.' The two cases are the actual settler, who has been
driven from his settlement, and the warrantee, who has been
prevented from making a settlement, but has persisted in his
endeavours to make one.
It is perfectly clear, that in each case, the proviso
substitutes something for the settlement to be made within two
years, from the date of the warrant, and for the residence to
continue five years, from the commencement of the settlement, both
of which were required in the enacting clause. What is that
something?
The proviso answers, that in case of 'an actual settler,' it is
his being 'driven from his settlement, by force of arms of the
enemies of the United States,' and in case of his being a grantee
of a warrant, not having settled, it is 'persisting in his
endeavours to make such actual settlement.' In neither case is
residence, or persisting in his endeavours at residence, required.
Yet the legislature had not forgotten, that by the enacting clause,
residence was to be added to settlement; for in the same sentence
they say, that the person who comes within the proviso, shall hold
the land 'as if the actual settlement had been made and
continued.'
It is contended on the part of the defendant, that as the time,
during which persistance shall continue, is not prescribed, the
person
Page 4 U.S.
392, 397
claiming the land, must persist until he shall have effected
both his settlement and residence, as required by the enacting
clause of the act: that is, that the proviso dispenses with the
time, and only with the time, during which the condition is to be
performed. But the words are not only inapt for the expression of
such an intent; they absolutely contradict it. If the proviso be
read so as to be intelligible, it requires nothing from the actual
settler who has been driven from his settlement. He is not to
persist in his endeavours at residence, or in other words, to
continue his settlement, but is to hold the land. From the
warrantee who has been prevented from making a settlement, no
endeavours at residence are required. He is to 'persist in his
endeavours,' not to make and to continue such actual settlement,
but 'to make such actual settlement as aforesaid.' And if he does
persist in those endeavours, he is to hold the land 'as if the
actual settlement had been made and continued.' The construction of
the defendant would make the legislature say, in substance, that if
the warrantee shall persist in endeavouring to accomplish a
particular object, until he does accomplish it, he should hold the
land as if he had accomplished it. But, independent of the
improbability that the intention to dispense only with the time, in
which the condition was to be performed, would be expressed in the
language which has been noticed, there are terms used, which seem
to restrict the time, during which a persistance in endeavours is
required. The warrantee is to persist in his endeavours 'to make
such actual settlement as aforesaid:' now, 'such actual settlement
as aforesaid' is an actual settlement within two years from the
date of the warrant, and as it could only be made within two years,
a persistance in endeavouring to make it, could only continue for
that time. If after being prevented from making an actual
settlement, and persisting in endeavours, those endeavours should
be successful within the two years; after which the person should
be driven off, it is asked what would be his situation? The answer
is a plain one. By persisting, he has become an actual settler; and
the part of the proviso which applies to actual steelers protects
him. If after the two years he should be driven off, he is still
protected. The application of external violence dispenses with
residence. The court feels itself bound to say so, because the
prrviso contains a substitute, which, in such a state of things,
shall be received instead of a performance of the conditions
required by the en cting clause; and of that substitute residence
forms no part. In a great variety of forms and with great strength,
it has been argued, that the settlement of the country was the
great object of the act; and that the construction of the plaintiff
would defeat that object.
Page 4 U.S.
392, 398
That the exclusive object of an act to give lands to settlers,
would be the settlement of the country, will be admitted; but that
an act to sell lands to settlers, must have for its exclusive
object the settlement of the country, cannot be so readily
conceded. In attempting to procure settlements, the treasury was
certainly not forgotten. How far the two objects might be
consulted, or how far the one yielded to the other, is only to be
inferred from the words in which the legislative intention has been
expressed. How far the legislature may have supposed the peopling
of the district in question to have been promoted by encouraging
actual settlements, though a subsequent residence on them should be
rendered impracticable by a foreign enemy, can only be shown by
their own language. At any rate, if the legislature has used words
dispensing with residence, it is not for the court to say they
could not intend it, unless there were concomitant expressions,
which should explain those words, in a manner different from their
ordinary import. There are other considerations in favour of the
construction to which the court is inclined. This is a contract,
and although a state is a party, it ought to be construed according
to those well established principles which regulate contracts
generally. The state is in the situation of a person, who holds
forth to the world the conditions, on which he is willing to sell
his property. If he should couch his propositions in such ambiguous
terms that they might be understood differently: in consequence of
which sales were to be made, and the purchase money paid, he would
come with an ill grace into court to insist on a latent and obscure
meaning, which should give him back his property, and permit him to
retain the purchase money. All those principles of equity and of
fair dealing, which constitute the basis of judicial proceedings,
require that courts should lean against such a construction. It
being understood that the opinion of the court on the two first
questions, has rendered a decision of the third unnecessary, no
determination respecting it has been made. [
Footnote 2] It is directed that the following opinion
be certified to the circuit court. 1. That it is the opinion of
this Court, that under the act of the legislature of Pennsylvania
passed the third day of April, in the year of our Lord one thousand
seven hundred and ninety-two, entitled 'An act for the sale of
vacant lands within this commonwealth,' the grantee, by a warrant,
of a tract of land lying north and west of the rivers Ohio and
Alleghany and Conewango creek, who by force of arms of the enemies
of the United
Page 4 U.S.
392, 399
States was prevented from settling and improving the said land,
and from residing thereon from the tenth day of April one thousand
seven hundred and ninety-three, the date of the said warrant, until
the first day of January in the year one thousand seven hundred and
ninety-six, but who during the said period persisted in his
endeavours to make such settlement and residence, is excused from
making such actual settlement as the enacting clause of the ninth
section of the said law prescribes, to vest a title in the said
grantee. 2. That it is the opinion of this court, that a warrant
for a tract of land lying north and west of the rivers Ohio and
Alleghany and Conewango creek, granted in the year one thousand
seven hundred and ninety- three, under, and by virtue of the act of
the legislature of Pennsylvania, entitled, 'An act for the sale of
vacant lands within this commonwealth,' to a person who, by force
of arms of the enemies of the United States, was prevented from
settling and improving the said land, and from residing thereon,
from the date of the said warrant until the first day of January in
the year 1796; but who, during the said period, persisted in his
endeavours to make such settlement and residence, vests in such
grantee a fee simple in the said land; although after the said
prevention ceased, he did not commence, and, within the space of
two years thereafter clear, fence, and cultivate, at least two
acres for every hundred acres contained in his survey for the said
land, and erect thereon a messuage for the habitation of man, and
reside, or cause a family to reside thereon, for the space of five
years next following his first settling of the same, the said
grantee being yet in full life. Upon this opinion of the Supreme
Court, the cause was again brought before a jury; the title was
legally deduced from the state to the lessor of the plaintiff; and
the facts of a prevention from making an improvement and
settlement, under the 9th section of the act of April 1972, by a
subsisting Indian war, as well as the facts of a persistance in the
endeavour to make such improvement and settlement, were
established, in detail, as they appear in the case of The
Commonwealth v. Coxe, ante. p. 170. After argument, by Ingersoll,
E. Tilghman, Lewis, and Dallas, for the plaintiff; and by M'Kean,
W. Tilghman, and M. Levy, for the defendant, the following charge
was delivered to the jury.
WASHINGTON, Justice. The plaintiff appears before you with a
regular paper title from the warrant to the patent. When this cause
was tried before, the counsel for the defendant insisted, that the
plaintiff's title was built upon a contract, which he had not
complied with, that he was to make a settlement, such as the
enacting clause of the 9th section requires, unless prevented from
doing so, by the enemies of the United States; in which latter
case, he was not only to prove a persistance in endeavours
Page 4 U.S.
392, 400
to make the settlement, during the period of the war; but was to
go on to make it, after the prevention ceased. This question was so
difficult, as to divide, not only this Court, but the Courts of
this state. The question was adjourned to the Supreme Court, who
have decided, that a warrantee, who, from April 1793, to the 1st of
January 1796, was prevented, by the enemies of the United States,
from making such settlement as the law required, but who, during
that period, persisted in his endeavours to make such settlement,
is entitled to hold his land in fee simple, although, after the
prevention ceased, he made no attempt to make such settlement. This
we must consider as the law of the land, and govern our decision by
it.
The questions then are,
1st. Was the Holland Company, from April 1793, to January 1796,
prevented from making their settlement? and,
2d. Did they persist in endeavours, during that period, to make
it?
What is the legal meaning of prevention, and persistance in
endeavours? Were they prevented, and did they persist, within this
meaning? The first are questions of law, which the Court are to
decide; the latter are questions of fact, proper for your
determination. What were they prevented from doing, in order to
excuse them? The answer is, from clearing, fencing, and
cultivating, two acres of land in every hundred acres contained in
their warrant, from building a house thereon, fit for the
habitation of man, and from residing, or causing a family to reside
thereon. To what extent were their endeavours to go? The answer is,
to effect these objects. It was not every slight or temporary
danger, which was to excuse them from making such settlement, but
such as a prudent man ought to regard. The plaintiffs stipulated to
settle as a society of husbandmen, not as a band of soldiers. They
were not bound to effect every thing which might be expected from
military men, whose profession is to meet, to combat, and to
overcome danger. To such men it would be a poor excuse, to say,
they were prevented by danger, from the performance of their duty.
The husbandman flourishes in the less glorious, but not less
honourable, walks of life. So far from the legislature expecting,
that they were to brave the dangers of a savage enemy, in order to
effect their settlements, they are excused from making them, if
such dangers exist. But they must persist in their endeavours to
make them, that is, they are to persist if the danger is over,
which prevented them from making them. For it would be a monstrous
absurdity to say, that the danger, which, by preventing them from
making the settlements, would excuse them, would not, at the same
time, excuse them from endeavours to make them, so long as it
existed. It would be a mockery to say, that I should be excused
from putting my finger into the blaze of this candle, provided I
would persevere in my endeavours to do
Page 4 U.S.
392, 401
it, because, by making the endeavours, I could do it, although
the consequences would be such as I was excused from incurring. If,
then, the company were prevented from making their settlements, by
dangers from a public enemy, which no prudent man would or ought to
encounter, and if they made those endeavours, which the same man
would have made, to effect the object, they have fully complied
with the proviso of the 9th section. How then are the facts? That a
public war between the United States and the Indian tribes,
subsisted from April 1793, and previous to that period, until late
in 1795, is not denied; and, though the great theatre of the war
lay far to the north west of the land in dispute, yet it is clearly
proved, that this country, during this period, was exposed to
repeated irruptions of the enemy, killing and plundering such of
the whites as they met with, in situations where they could not
defend themselves. What was the degree of danger produced by those
hostile incursions, can only be estimated by the conduct of those,
who attempted to face it. We find them sometimes working out in the
day time in the neighbourhood of the forts, and returning within
their walls, at night, for protection; sometimes giving up the
pursuit in despair, and retiring to the settled parts of the
country; then returning to this country, and again abandoning it.
We sometimes meet with a few men hardy enough to attempt the
cultivation of their lands, associating implements of husbandry,
with the instruments of war, the character of the husbandman, with
that of a soldier; and yet I do not recollect any instance, where,
with this enterprising, daring spirit, a single individual was
enabled to make such a settlement as the law required. You have
heard what exertions were made by the Holland company, you will
consider what was the state of that country during the period in
question, you will apply the principles laid down by the Court to
the evidence in the cause, and then say, whether the title is with
the plaintiff or not.
Verdict for the plaintiff.
Footnotes
Footnote 1 For a general
view of this important controversy, see the cases reported ante, p:
170. The Commonwealth v. T. Coxe, 237. Attorney General v. The
Grantees under the Act of April 1972, and ante, p. 363. Balfour's
Lessee v. Mende.
Footnote 2 Although no
opinion was publicly delivered on the third question, it was
understood, that the subject had been generally considered by the
Court; and my information (which does not, however, proceed from
the judges themselves) states the result to have been favourable to
the grantee.