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means of recorded votes."

It has, accordingly, been held, that the government may grant the lands of the commonwealth without any deed. It has been done by resolve, and, since the adoption of the constitution, committees of the legislature have given deeds setting forth the authority under which they acted, and affixing their own seals. In construing legislative conveyances, great liberality was applied in carrying out the intention of the grants, giving to these votes the effect of limiting a fee without words of succession, or inheritance, when necessary.2 Such grants made the grantees tenants in common. And when, in 1651, an act of the legislature required that "heirs" should be inserted in the habendum of deeds, in order to carry a fee, grants by towns were excepted.*

Probably, therefore, a very large proportion of the early estates in Massachusetts and Maine, were held by no better title than a vote of the legislature, or that of proprietaries acting as ordinary corporations. Originally, it seems, it was supposed that this power of towns and other proprietaries to dispose of their lands by votes of majorities, was intended only to apply to a partition of them into shares among themselves. But it soon grew to be a customary mode of making grants of lands to others, and the titles thus created, have been recognized as valid by the courts.5 But it is said by the court of New Hampshire, that "towns cannot now pass the title to real es

NOTE. In some cases grants of a million or more acres were made, as in the case of the Kennebec, Pejepscut and Waldo Patents. In 1712, proprietors of common lands were, by law, authorized to organize themselves and act as corporations, and to manage their lands by corporate votes. This general power of proprietors of wharves, confmon lands, &c., to act as corporations, still subsists, though it is apprehended it is no longer competent for such proprietaries to convey their lands by vote. 4 Dane, Abr. 120; Gen. Stat. ch. 67. See Higbee v. Rice, 5 Mass. 350.

1 Ward v. Bartholomew, 6 Pick. 414.

2 Baker v. Fales, 16 Mass. 497.

Higbee v. Rice, 5 Mass. 350. See Hyman v. Read, 13 Cal. 444, 455; Feoffees of Grammar School, &c. v. Andrews, 8 Met. 591.

4 4 Dane, Abr. 61.

5 Rogers v. Goodwin, 2 Mass. 475, 477; Anc. Chart. 402, 403; Codman v. Winslow, 10 Mass. 146, 150; Adams v. Frothingham, 3 Mass. 352; Commonwealth v. Roxbury, 9 Gray, 479; Plymouth, Col. Laws, 29, 30, 198; Decker v. Freeman, 3 Me. 338; Pike v. Dyke, 2 Me. 213; Thomas v. Marshfield, 10 Pick. 367; Springfield v. Miller, 12 Mass. 417; Bachelder v. Wakefield, 8 Cush. 247; Green v. Putnam, 8 Cush. 25; Shrewsbury v. Smith, 14 Pick. 297; Higbee v. Rice, 5 Mass. 350.

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tate by a vote." This doctrine of legislative grant has been adopted also in New Hampshire, and, in applying it, their courts hold, that no particular terms are necessary to constitute a grant by the legislature, and where they have fixed a particular line as the line of a township, the State is estopped to say that the title of the proprietors of the township does not extend to such line, and that a State may be estopped by the acts of its legislature. In a case in Maine, Massachusetts, before their separation, in order to quiet, the title of certain lands to the settlers in the town, authorized a committee to execute releases to these settlers, respectively, of the interest

of the commonwealth in the land. The occasion for doing [*536] this was, that the commonwealth, while a province, had

granted the township, when, by the terms of the charter of 1692, it was necessary for the king to approve of the grant in order to its validity. This had never been done, and consequently nothing had passed by such former grant, and, as successors to the province, the commonwealth might claim the land. Nor was the State disseised, though there were persons in possession of the lands claiming them. The committee, instead of executing a deed of release, made one by which the interest of the State was granted, sold, and quitclaimed, and a question arose whether this was a valid exercise of the power delegated to them. But it was held, that the deed, as given, might be construed as a deed of release, and that it was competent for the commonwealth, in the exercise of its legislative power, to prescribe any form they might deem expedient, and that the same would be effectual, though, if used by an individual or a corporation, it would have been inoperative. And in a similar case it was held, that, whether the deed was in proper form or not, the resolve itself, authorizing the release to be made, was itself virtually a grant. In closing this subject it is only necessary to add, that it was always competent for the State or proprietaries to make grants by means of deeds executed by agents or committees chosen and appointed for that purpose, and that such is the mode which has been adopted for many years, in disposing of the public lands.5

1 Cofran v. Cockran, 5 N. H. 461.

2 Enfield v. Permit, 5 N. H. 280.

8 Hill v. Dyer, 3 Me. 441.

4 Sargent v. Simpson, 8 Me. 143, 148. See Lambert v. Carr, 9 Mass. 185.

5 See Church v. Gilman, 15 Wend. 656, and such deed must be proved to have been delivered, as any other deed. Hulick v. Scovil, 4 Gilm. 174.

50. Since the publication of the former edition, circumstances have unfortunately occurred which render it proper to briefly refer to one other mode of changing the title to lands by the action of the government, and that is by confiscation. In doing this, it will only relate to an earlier period of history than the present. It was a measure resorted to by the governments of Massachusetts, Maryland, New York, Georgia, and, probably, of the other colonies, against those who continued to adhere to the crown at the time of the Revolution. They were regarded as conspirators against the government. In Massachusetts the legislature, at first, by special acts, declared that certain persons by name, were conspirators and absentees, and that their estates should escheat to the commonwealth. Out of these, provision was made for the payment of their debts, and for the wives of such as remained within the government. But no trial or judicial proceedings were required before the escheat was to take effect. By a subsequent act, 1779, a general provision was made whereby the estates of such as had levied war or conspired to do so against any of the colonies, or the United States, were declared to be escheated. But before any estate could be adjudged, forfeited, and confiscated, it required judicial proceedings to be had. These proceedings were commenced and carried on by the public prosecuting officer, and, upon an adjudication had, commissioners, of whom there were a certain number appointed in each county, proceeded to sell and pass deeds to convey the same, in the name of the commonwealth, which were valid if executed by a major part of such commissioners. It was usual, upon such proceedings of escheat, for the court to issue a writ of habere facias. But it was decided, that this formality was not necessary in order to perfect the title in the purchaser, the judgment being conclusive of the right, and the deed perfecting the title. In New York, the proceedings seem to have been by a simple legislative act of attainder, whereby the estate of the delinquent was declared forfeited to the State, and was then disposed of by commissions of forfeitures.1

1 4 Dane, Abr. 77, 703, 707; M'Neil v. Bright, 4 Mass. 282; Gilbert v. Bell, 15 Mass. 44; Higginson v. Mein, 4 Cranch, 415; Jackson v. Catlin, 2 Johns. 248, 260;. McGregor v. Comstock, 17 N. Y. 164.

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5.

6.

Of sales by decrees of courts of chancery.

7.

Of the limits of the power of legislation in transferring title.

Effect of a decree, on title, before deed made.

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10. Power of taxation incident to government itself. 11. Lands held under public grant liable to tax.

12. Power to sell for taxes a naked one.

13. Recitals in a tax deed no evidence against original owner.
14. Purchaser under tax sale to see that proceedings are correct.
15. What a purchaser under tax sale must prove, as to title.

16. No power of sale attaches till prerequisites are complied with.
17. A tax deed not of itself evidence of a compliance with the statute.
18. Exceptions by which such deeds are primâ facie evidence of title.
19. Requisites of such deeds as to form.

20. Tax deed must be delivered to be valid.

21. How far the deed must recite the power by which it is made.

22. The deed must be to the one who bids off the land.

23. How far necessary to record a tax deed.

24. Effect of the death of original owner, and what deed is null.

25. Of the redemption of lands sold for taxes.

26.

27.

Of selling lands of proprietaries for assessments.

General considerations as to titles by official grants.

28. How far the original judgment, decree, &c., are open to inquiry.

29. How far competent to deny the allegations of an officer as to his own act.

30. The official return of the doings of a ministerial officer conclusive.

1. There are several modes and forms of divesting the title of one owner to lands, and creating a title to the same in another, which derive their force and effect from statute provisions, [*537] *whereby conveyances are made by some officer of the law

to effect certain purposes where the owner is either unwilling or unable to execute the requisite deeds to pass the title. Among

these are levies or sales to satisfy execution creditors, sales by order or decree of a court of chancery, sales by orders or licenses of courts, or by special acts of the legislature for the payment of the debts of persons deceased, or the investment of funds for infants, and the like, and sales made under the provisions of the statutes of the several States, for the enforcement of the payment of taxes, or of special liens thereon..

This mode of creating title which, for convenience, may be called title by office grant, would open too extensive and varied a field of inquiry to consider in detail, and the examination is therefore confined to limits more suitable to a work like the present. To carry the purposes of such levy or sale into effect, implies the execution of a statute power, varying according to the subject-matter upon which it is exercised. The subject of levies and sales of land upon execution was spoken of in a former part of this work,1 where a summary of the several statutes relating to it may be found. The reader will also find it treated of by Chancellor Kent in the fourth volume of his commentaries,2 and to these he is referred, with what may be hereafter said of the requisite formalities to be observed in the terms and execution of such and similar deeds.

2. But it may be observed that whatever is the form prescribed by statute whereby the land of a debtor is appropriated by act of law to the payment of a judgment creditor, the title thereby acquired is, to all intents, as valid and effectual, with few if any exceptions, as if it had been conveyed by the debtor himself by a deed in the proper and requisite form. It is the policy of the law, in all the States, to give to creditors a right to avail themselves of the property of their debtors, with certain limitations and restrictions, and which is to apply as well to the case of deceased as living debtors, and the law, accordingly, provides means for carrying out this policy.

*In case of persons dying intestate, provision is made [*538] whereby courts are authorized to empower their administrators to sell and convey the lands of the deceased, and thereby to pass a good title to the same. The same is true in respect to testate estates of persons indebted, whose executors are not empowered by their wills to make sale of their lands.

1 Vol. I. p. *464, et seq.

24 Kent, Com. 428, et seq.

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