Huidekoper v. Douglass.

can only be defeated by an act of the commonwealth, taking advantage of a forfeiture for non-compliance with the terms of the grant.

I. In order to understand the act of 1792, it will be necessary to take a view of the situation of the state of *Pennsylvania at that period. [*11 Her finances were embarrassed, and an Indian war existed on her frontiers. Hence, she had two great objects in view, the protection of those frontiers, and the accession of wealth to her treasury. To accomplish the first, no means were so sure as to establish on the frontiers a firm, hardy and vigilant population, bound by their dearest interests to watch and repel the predatory incursions of the Indians. And to attain the second, no means presented themselves so obviously as the sale of the vacant lands.

Although the war was raging, at the time when the act passed, yet negotiations were pending, and peace was expected. The general provisions of the act, therefore, especially those which relate to settlement and residence, are predicated upon a state of peace, while the legislature also took care to provide for a state of war.

The extent of that provision is the principal subject of litigation. Without resorting to the words, but considering the law as a contract, what are the motives and ideas which may be reasonably ascribed to the parties?

1st. As to the state. 1. The settlement might be prevented by two means; public calamity, or negligence in the grantee. For the one, it was just that the state should answer; for the other, the grantee. 2. It was unreasonable, for the state to require the same from him who should be prevented, as from him who should not be prevented from making a settlement. A mere enlargement of time, diminishes, but does not obviate the objection. It does not put both on an equal footing. The man who has spent years in fighting and toiling to obtain a settlement, is still to do just as much as the man who has stayed at home by his fire-side till war is over, and then purchases his warrant. The former has no credit for his toil and wounds. This construction is evidently contrary to the spirit of the act, which was to *gain hardy adventurers, who should join their exer[*12 tions to those of the state and of the United States, to subdue the Indians; for it totally destroys all motive for such exertions. The state, therefore, might say, and, without doubt, meant to say, to the war warrantee, that a persistence in the endeavor to settle, during the period prescribed, shall be accepted in lieu of actual settlement. That the man who has actually accomplished the settlement and residence, in time of peace, and he who shall have persisted in his endeavors to settle and reside for the stipulated time, during a state of war, but who has been prevented by the enemy from accomplishing his settlement and residence, are equally meritorious, and shall be put on the same footing.

2d. As to the warrantee. Would he purchase, during the war, if he was liable to forfeit his warrant although he persists during the limited time, and if all his expenses and dangers were to go for nothing, and if, at the end of the war, he would be in the same situation as if he had remained at home?

The situation of the state, then, called for money, population and improvement. The means were a sale of the land, subject to settlement, if not prevented by a public calamity. The words and spirit of the act are conformable to these ideas. The title is, for the sale of vacant lands. The

Huidekoper v. Douglass.

preamble states, that the prices at which they have been heretofore held were found so high as to discourage actual settlers from purchasing and improving. The second and third sections contain the offer of the lands for sale, and the ninth describes the terms.

On this overture, companies and individuals became purchasers. Among the rest, the Holland Company, in April 1792, and August 1793, purchased 1162 tracts of 400 acres each, which, by losses upon re-surveys, *and *13] bounties to actual settlers, are reduced to 776 tracts, which have cost the company $222,071.10 for purchase-money, and (up to the year 1802) $202,000 in expenses, endeavors to settle, and actual improvements. The Population Company also expended nearly the same amount. The consequence was, that the public treasury was supplied; a bank was established, which furnishes revenues adequate to the whole expenses of the government, so that no taxes have been since imposed; industry and improvements have been stimulated, and the state has advanced rapidly in wealth and prosperity. The persistence and prevention of the Holland company are admitted.

in

The treaty made with the Indians in 1795, is considered as the epoch from which the two and the five years mentioned in the 9th section begin to run. But there was still further prevention by distance, by the season (for the treaty was ratified in the winter), by intruders (who were pushing upon the lands, under pretence that the warrants were forfeited by want of settlement within the two years), and by the construction of the act given by the board of property. How, then, are the terms of the contract to be expounded? Not by the words (for they are inconclusive and repugnant), but by the nature of the transaction. By the 3d section, a fee-simple is granted; but the 9th section annexes a condition precedent. The warrant shall not vest any title " unless," " &c.

The nature of the transaction, however, gives a possessory title, and an usufructuary property, at least, for the two and the five years, else the warrantee could not go and make a settlement. It is always spoken of in the act as a grant. It may be devised, sold, descend, be taken in execution, &c. By the 9th section, what is given can only be divested by default. The whole estate does not remain in the grantor, until performance of the condition.

*But the settlement and residence for the time mentioned, is not a *14] sine qua non to vest an absolute title. There are cases within the 9th section, in which the title becomes absolute, although the residence shall not have been completed. The words of the act are, "reside thereon for the space of five years next following his first settling of the same, if he shall so long live." If the warrantee, having begun his settlement, should die, before the expiration of the five years, his title is complete. So, if he puts a family on the land to reside, and dies before the end of the term, and the family quits its residence before the expiration of the five years, the title is absolute. So, if an actual settler shall, by force of arms of the enemies of the United States, be driven from his settlement. And so (as we say), “if any grantee shall," by like force, "be prevented from making an actual settlement, and shall persist in his endeavors to make such actual settlement," during the time allowed for making the same, that is, for two years, "he and his heirs shall be entitled to have and to hold the said lands, in the same

Huidekoper v. Douglass.

manner as if the actual settlement had been made and continued." In each of these cases, the condition is released. If the legislature meant anything less, words were not wanting in which to express their ideas, and here was an opportunity of using them.

The particular words of the proviso are important. "If any grantee shall be prevented:" this implies an attempt and failure: "and shall persist," implying still the want of success: "in his endeavors ;" still holding up the idea that the thing is not accomplished; "to make," not, until he make, not persist to make, but persist in his endeavors to make, implying a continued attempt, not a performance. "Shall be entitled to have and to hold, in the same manner as if." Here the words as if, necessarily imply that the thing itself is not done. The first part of the section gives the lands, if the thing is done, but the proviso also gives it, in a certain case, if it be not done, in the same manner as if it had been done. They who contend that the persistence must continue, until the object is accomplished, make the legislature speak this absurd language: persist until the settlement has been made, and you shall have the land in the same manner as if the set[*15 tlement had been made. But we make them speak much more rationally. If you are prevented by the enemy from making the settlement, but persist in your endeavors for two years, you shall have the land, in the same manner as if the settlement had been made. We will take your endeavors for success. If settlement and residence were necessary, in all cases, the proviso is useless. If the legislature meant, by the proviso, only to extend the time, they have been very unfortunate in their language, for there is no expression which indicates such an idea, and it is contradicted by the preceding part of the section, by which the commonwealth reserve the right to grant new warrants as often as defaults shall be made, for the time, and in the manner aforesaid. No time is expressed in the act, but the two and the five years. If the time is to be enlarged, who shall say, how long? There is no provision for trying by a jury the question, what is a reasonable time. The act contemplates but two cases. An actual settlement, within the time, or a prevention, during the time, by the act of God, or of the public. enemy. In both cases, the title was to be absolute. The same reason that releases the warrantee who dies, applies more strongly to the warrantee prevented by the enemy, and the 10th section puts them both on the same footing.

Let us consider what is required by the 9th section, and what is relinquished by the proviso? 1. It requires, within two years, a settlement, by clearing two acres for every hundred, by erecting a habitation and by residing five years. Here is evidently a confusion of terms, by requiring a settlement, consisting of five years' residence, to be accomplished in two years. *There are also other absurdities in the same section, equally glaring. [*16 Thus, it is declared, that in default of such actual settlement, the commonwealth may issue new warrants to other actual settlers; and that if such actual settler shall be prevented from making such actual settlement, he shall be entitled in the same manner as if the actual settlement had been made.

2. What is relinquished. The condition of residence is released by the death of the warrantee, and prevention releases both residence and settleThe enacting part of the section may be considered as a covenant to settle; and the proviso as a covenant to convey in case of prevention.

ment.

Huidekoper v. Douglass.

II. If persistence for two years does not for ever and totally release the condition of settlement, yet the warrant vests a title, under one of three aspects.

1st. Provided, during and for a reasonable time after the period of prevention, he persists in his endeavors to accomplish an improvement, settlement and residence, although his endeavors should not be successful.

To suppose the title to be forfeited, although an accomplishment of the condition has been prevented by the enemy, is to make the proviso of no use whatever. But giving a use to the proviso, and supposing it to mean an extension of time, everything is at sea. Every case would have a different rule, and decisions would vary with every jury. No case could be decided without a lawsuit. But if you allow the warrantee to gain a title by persisting, during the war, and for a reasonable time after, although without success, you render the law intelligible, and give effect to every part. *This construction comports with the peculiar expressions of the act, and is justified by the nature and equity of the case. Endeavors during war would be more expensive than success in time of peace, and equally beneficial to the state. By this means also, you put the war-warrantee and the peace-warrantee upon an equal footing. But the legislature fixed a positive period, and left nothing to discretion.

*17]

shall change the nature of the contract? Who give discretion to courts and juries? Who substitute endeavor for performance, in reference to any other time than the legislature contemplated?

2d. The second aspect is, provided he persists, after the war, and accomplishes the improvement in two years, and continues the residence for five years from the cessation of the prevention.

This is what is contended for on the other side, but this is not the express contract which fixes the time, as well as the acts which are to be done. It is not a contract which can be implied; for an undertaking to act in two years from the date of the warrant, does not imply an undertaking to act in two years after a war, which may be fifty years from the date of the warrant. The proviso contemplates no new act, no new epoch, but under the specified circumstances gives a title as if the act had been done in the time prescribed. This construction would make the proviso a mere mockery. It would place the warrantee, who had toiled through the dangers of the war, at a heavy expense, in no better situation than if he had used no exertions at all.

3d. The third aspect is, provided he persists during and after the war, *18] and perform the conditions at any time before the commonwealth takes advantage of the forfeiture.

This regards the case as a condition subsequent, the estate continuing after the contingency, until the grantor enters and claims. But this is contrary to the words, which call for endeavors, not performance. This construction destroys all limitation of time.

Upon the whole, there is no clear, safe, equitable and satisfactory construction, but that which supposes the condition to be released by the impossibility of performance within the time prescribed.

III. The inceptive title of the warrantee gives a right of possession, which can only be defeated by an act of the state.

All forfeitures are to be construed strictly. And where compensation

Huidekoper v. Douglass.

can be made, they are never enforced in equity. The forfeiture claimed is entitled to no favor. The contract itself was ambiguous, and rendered more so by official misinterpretations. The price has been paid. Time, labor and money have been expended in improvements, and attempts to settle. The prevention has been by a public calamity, not by private negligence. The operation of the forfeiture is dishonorable to the state. She seizes the land with all their amelioration, to sell them again to a stranger. Even the state herself, therefore, ought not to be countenanced in taking advantage of the forfeiture.

*But what pretext can justify a stranger in intruding upon the [*19 possession of the warrantee? This is the case of a trespasser, who thrusts himself in upon the land, pretending that the warrantee has forfeited his title. Is every person, who chooses to intrude, to be the judge whether the possessor has forfeited his title? This would encourage forcible entries and riots; riot would grow to rebellion. The peace of the commonwealth is at stake. No man can acquire a title by his own tort.

But turn to the words of the act. "That in default of such actual settlement and residence, it shall and may be lawful to and for this common-· wealth 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," &c. There must be proof of default; the party must be heard. The commonwealth may, not shall, grant new warrants.

It is said, however, that they are to be issued to other actual settlers; which gives a right to any person to enter on a forfeiture. The terms of the act, as well as the nature of the transaction, show that the case of a warrantee, and not a mere settler, is meant. It supposes a new warrant, where an old one had issued. Actual settler, is a descriptio persona. It does not mean a man who has completed, but who contemplates, an actual settlement. This appears from the manner in which the terms actual settler are used in the preamble, *and in the 5th, 8th and 10th sections of the act, and even in the 9th section itself.

[*20

The commonwealth may grant new warrants to other actual settlers. Other than whom? Other than the actual settlers who had failed to make an actual settlement in the manner described in the beginning of that section. It means a person who had purchased with an intention, or under a stipulation, to make an actual settlement. There is no express authority given to any person to enter on a warrantee. Can it be implied, by saying that the state may grant to another actual settler? Her act must constitute the forfeiture of the old title: her act must grant the new.

E. Tilghman, on the same side, confined his argument principally to the support of the proposition, that a persistence for two years, after the date of the warrant, and in time of war, in endeavors to make a settlement, gave the same title as if the actual settlement had been made and continued. He contended, that revenue and population were equally the objects of the legislature in passing the act. It ought not, therefore, to be construed with a sole view to population. The act, like a will, ought to be so construed as to carry into effect th intention of the legislature, and to give operation to all its parts.