HUIDEKO.

PER'S LESSEE

V.

DOUGLASS.

If the settlement is begun within the two years, and continued for five years, it is sufficient. Until a survey there could be no appropriation; and until appropriation there could be no settlement-and there could be no effectual residence unless the settlement was made

the warrants to be dead, according to the cant word of the day, and who, though not parties to this suit, are asserted to be implicated in our decision. If the lands are forfeited in the eye of the law, though they have been fully paid for, the breach of the condition can only be taken advantage of by the commonwealth, in a method prescribed by law. Innumerable mischiefs, and endless confusion, would ensue, from individuals taking upon themselves to judge when warrants and surveys cease to have validity, and making entries on such lands at their will and pleasure. I will repeat what we told the jury in Morris' lessee v. Neighman and Shaines : "If the expressions of the law were not as particular as we find them, we should have no difficulty in pronouncing that no persons should take advantage of their own wrong, and that it does not lie in the mouths of men, like those we are speaking of, to say the warrants are dead; we will take and withhold the possession, and thereby entitle ourselves to reap benefits from an unlawful act."On the whole, I am of opinion, that the rule should be discharged.

SMITH, Justice.—I have had a full opportunity of considering the opinion delivered by my brother Yeates; and as I perfectly concur in all its principles, I shall confine myself to a simple declaration of assent. I could not hope, indeed, to add to the argument; and I am certain I could not equal the language, which he has used or the occasion.

BY THE COURT. Let the rule be discharged.

Since this decision was pronounced, the subject has been revived and agitated in various interesting forms. In the winter of 1801-2, several petitions were presented by the intruders to the legislature, requesting their interposition, but the committee of the Senate to whom these petitions were referred, reported against them and admitted, that the controversy belonged exclusively to the courts of justice. But soon after this report was made, a bill was introduced, which recites the existing controversies, gives a legislative opinion against the claim of the warrantees, and institutes an extraordinary tribunal, to hear and decide between the parties.— The appearance of this bill produced two remonstrances from the Holland Company, but without effect. As soon as it became a law, the Attorney-General and the Counsel for the Company were invited to a conference with the Judges, on the carrying of it into effect; but, upon mature consideration, the Counsel for the Company declined taking any part in the business, and assigned their reasons in a letter addressed to the Judges, dated the 24th of June, 1802. An issue was then formed, by the direction of the Judges, which was tried at Sunbury, on the 25th of November fallowing, hefore Yeates, Smith and Brackenridge, Justices.

V.

within the two years. Did the legislature mean to dis- HUIDEKOpense with the five years residence, if the settlement PER'S LESSEE could not be made in two years? The 9th section says, the DOUGLASS. title shall not vest, unless, &c. The only difficulty was, to limit the time within which the settlement should be made.

The Charge, as delivered by Mr. Justice Yeates, is as follows:

That the decision of the Court and Jury on the present feigned issue should "settle the controversies arising from contending claims to lands north and west of the rivers Ohio and Alleghany and Cone wango creek." is an event devoutly to be wished for by every good citizen. "It is indispensably necessary that the peaco of that part of the State should be preserved, and complete justice done to all parties interested, as effectually as possible.". (Close of Preamble to the Act of 2d April, 1802, p. 155.)

We have no hesitation in declaring, that we are not without our fears that the good intentions of the legislature, expressed in the law under which we now sit, will not be effected. We hope we shall be happy enough to acknowledge our mistake hereafter.

It is obvious that the validity of the claims of the warrant-holders, as well as of the actual settlers, must depend upon the true and correct construction of the act of the 3d April, 1792, considered as a solemn contract between the commonwealth and each individual.

The circumstances attendant on each particular case may vary the general legal conclusion in many instances.

We proceed to the discharge of the duties enjoined on us by the late act.

The first question proposed to our consideration is as follows:

Are warrants heretofore granted under the act of the 3d April, 1792, valid and effectual in law against this commonwealth, so as to bar this commonwealth from granting the same land to other applicants under the act aforesaid, in cases where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the said act, at any time before the date of such warrants respectively, or within two years after ?

It will be proper here to observe, that on the motion for the mandamus to the late Secretary of the Land-office, at the instance of the Holland Company-the Members of this Court, after great consideration of the subject, were divided in their opinions. The Chief Justice seemed to be of opinion, that if a warrantee was "by force of arms of the enemies of the United States, prevented from making an actual settlement, as described in the act, or was driven therefrom, and should persist in his endeavours to make such actual settlement thereafter," it would amount to a performance of the

V.

་

HUIDEKO- If the settlement is incomplete, he is still to persist. If PER'S LESSEE the improvements are made, but the residence not DOUGLASS. Completed, it is said he is not to persist. But the proviso says, that if the actual settler shall be driven off, and shall persist, &c. What is he to persist to do? Some

condition in law. Two of us (Yeates and Smith) thought, that in all events, except the death of the party, the settlement and residence contemplated by the act, should precede the vesting of the complete and absolute estate, and that "every warrant-holder should cause a settlement to be made on his lands, within two years next after the date of the warrant, and a residence thereon for five years next following the first settlement, on pain of forfeiture, by a new warrant; but if, nevertheless, he should be interrupted or obstructed by the force of the enemy from doing those acts within the limited periods, and shall afterwards persevere in his efforts in a reasonable time after the removal of such force, until these objects should be accomplished, no advantage shall be taken of him for the want of a successive continuation of his settlement."-To this opinion Judge Brackenridge subscribes.

It would ill become us to say which of these constructions is entitled to a preference. It is true, that in the preamble of the act of the 24 April, 1802, (p. 154) it is expressed, that "it appears from the act aforesaid, (3d of April, 1792) that the commonwealth regarded a full compliance with those conditions of settlement, improvement and residence, as an indispensable part of the purchase or consideration of the land itself." But it is equally certain that the true test of title to the lands in question must be resolved into the legitimate meaning of the act of 1792, extracted ex viceribus suis, independent of any legislative exposition thereof. I adhere to the opinion which I formerly delivered in Bank; yet, if a different interpretation of the law shall be made by courts of a competent jurisdiction in the dernier resort, I shall be bound to acquiesce, though I may not be able to change my sentiments. If the meaning of the first question be, are titles under warrants issued under the law of the 3d of April, 1792, for lands north and west of the rivers Ohio and Alleghany and Cone wango creek, good and available against the commonwealth, so as to bar the granting of the same land to other applicants, where the warrantees have not fully and fairly complied with the conditions of settlement, improvement, and residence, required by the law, at any time before, or within two years after, the dates of the respective warrants, in time of profound peace, when they were not prevented from making such actual settlement by force of arms of the enemies of the United States, or reasonable and well grounded fear of the enemies of the savages?-The answer is ready in the language of the acts before us, and can admit of no hesitation.

"No warrant or survey for those lands shall vest any title, 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

PER'S LESSEL

DOUGLASS.

thing certainly which remained to be done; and nothing HUIDEKOremained to be done but to complete his residence. But if he persist in his endeavours to do this, the time during which he is prevented and persists, shall go to his credit. Hence there must be a persistance for five years at least.

thereon, by clearing, &c. and in default thereof, it shall and may be lawful to and for the commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof," &c.(Act of the third of April, 1792, sec. 8.) For "the commonwealth regarded a full compliance with these conditions of settlement and residence as an indisputable part of the purchase or consideration of the lands so granted." (Preamble to act of 1802.)

But if the true meaning of the question be-whether, under all given or supposed circumstances of peace or war, of times of perfect tranquillity or imminent danger, such warrants are not ipso facto void and dead in law, we are constrained to say, that our minds refuse assent to the general affirmative of the proposition.

We will exemplify our ideas on this subject. Put the case, that a warrant taken out early in 1792, calls for an island, or describes certain land, with accuracy and precision, by the course of waters, or other natural boundaries, distant from any military post, and that the warrantee, after evidencing the fullest intentions of mak ing an actual settlement on the land applied for, by all the necessary preparation of provisions, implements of husbandry, labourers, cattle, &c. cannot, with any degree of personal safety, seat himself on the lands within two years after the date of the warrant, and by reason of the just terror of savage hostilities. Will not the proviso in the 9th section of the act of 3d April, 1792, excuse the temporary non-performance of an act, rendered highly dangerous, if not absolutely impracticable, by imperious circumstances, over which he had no controul?

Or, suppose another warrant, depending, in point of description, on other leading warrants, which the district Surveyor, either from the state of the country, the hurry of the business of his office, or other causes, could not survey until the two years were nearly expired, and the depredations of the Indians should intervene for the residue of the term, will not this also suspend the operation of the forfeiture -Nothing can be clearer to us, than that the terms of the proviso embrace and aid such cases; and independent of the strong expressions made use of, we should require strong proof to satisfy our minds that the legislature could possibly mean to make a wanton sacrifice of the lives of her citizens.

It is said in the books, that conditions rendered impossible by the act of God, are void. Salk. 170. 2 Co. 79. b. Co. Lit. 206. a. 290. b. 1 Roll. Ah. 449. l. 50. 1 Fonb. 199. Vol. III G

HUIDEKO

PER'S LESSEE

V.

DOUGLASS.

The warrant gave a right to enter the land, to survey it, and to make the settlement. But this right would be forfeited under the former part of the section, if not exercised in two years.

This was the right which the proviso meant to protect, and nothing more. This is the right which is saved

But conditions precedent must be strictly performed to make the estate vest, and though become impossible, even by the act of God, the estate will not vest―aliter of conditions subsequent, 12 Mod. 183. Co. Lit. 218. a. 2 Vern. 339. 1 Ch. Ca. 129. 138. Salk. 231. 1 Vern. 183. 4 Mod. 66.-We desire to be understood to mean, that the "Prevention by force of arms of the enemies of the United States," does not, in our idea, absolutely dispense with and annul the conditions of actual settlement, improvement and residence, but that it suspends the forfeiture by protracting the limited periods. Still, the conditions must be performed cy pres, whenever the real terror arising from the enemy has subsided, and he shall honestly persist in his endeavours to make such actual settlement, improvement and residence, until the conditions are fairly and fully complied with.

Other instances may be supposed, wherein the principles of prevention may effectually be applicable. If a person, under the pretence of being an actual settler, shall seat himself on lands previously warranted and surveyed within the period allowed, under a fair construction of the law, to the warrantee, for the making his settlement, withhold the possession, and obstruct him from making his settlement, he shall derive no benefit from this unlawful act. If the party himself is the cause wherefore the condition cannot be performed, he shall never take advantage. Co. Lit. 206. Doug. 661. 1 Roll. Ab. 454. pl. 8. Godb. 76. 5. Vin. 246. pl. 25.

We trust that we have said enough to convey our sentiments on the first point. Our answer to the question, as proposed, is, that such warrants may or may not be valid and effectual in law against the commonwealth, according to the several times and existing facts accompanying such warrants. The result of our opinion, founded on our best consideration of the matter is, that every case must depend on, and be governed by its own peculiar circum

stances.

The second question for decision is, are the titles that have issued from the Land-office under the act aforesaid, whether by warrant or patent, good and effectual against the commonwealth, or any person claiming under the act aforesaid, in cases where such titles have issued on the authority, and have been grounded on the certificates of two Justices of the Peace, usually called prevention certificates, without any other evidence being given of the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence, required by the said act, could not be complied with?