Ross v. Barker , 5 Watts 391 ( 1836 )

The opinion of the Court was delivered by

Gibson, C. J.

The rejection of the depositions has not been a subject of particular reliance; nor does there seem to be colour for the exceptions to which it gave birth. It was not explicitly shown, as it ought to have been, that the depositions were taken in a conflict between the same titles. One of the defendants in the former ejectment was in possession under a stranger, whose title does not appear; and, as no defence was made at the trial, he and the other defendants may have been naked intruders. Nor was there competent proof of the filing required by the rule of court. All was parol; and it but appeared that it was the practice, a monstrous one to be sure, to make no memorandum of the filing; and that though the depositions had been put into the office, they had been taken away and brought back again by one of the defendants, after a lapse of thirteen or fourteen years. What may have happened to them in this interval of surreptitious custody — probably nothing, but possibly a gr.pt deal — cannot certainly be told; and, to say nothing of the incongruity of verbal proof of an office transaction, it is abundantly clear they were not filed within the meaning of the rule, or in the keeping prescribed by it.

■ The point raised by the second assignment of error is disposed of by the decision in Campbell v. Galbraith, 1 Watts 78, that the beneficial owner may maintain ejectment in the name of a nominal warrantee, ignorant both of the action and the trust, no more being required than to disclose the name of the actual party. The negative presumption attempted, from the fact that certain of the defendant’s witnesses had not heard óf the legal plaintiff, would enable a party to prove the death or non-entity of any person whatever, as nothing would be easier than to find those who had not heard of him.

' It is unnecessary to recapitulate the decisions on the statute of limitations; for if there is any thing definitely settled, it is, that the possession of a settler who has omitted to mark out his boundaries by competent authority cannot be constructively extended beyond llis immediate occupancy. And this principle is peculiarly appropriate to a settler under the act of 1792, who might have had a survey without a warrant, and who cannot recover the possession without it. What, then, was the defendant’s case? The settler under whom they claim began his residence in 1796, and his immediate successors obtained their vacating warrant and survey in 1807, before which they had no constructive possession of any land in particular; but having then gained a constructive possession of all included by their survey,.it continued till 1817, a period of bare ten years, when they were evicted by process. It is obvious they did not gain a colourable title to the plaintiff’s survey, for they claimed in hostility to it; and this differs their case from that of M’Call v. Neely, 3 Watts 69, where the occupants had entered as proprietors of the whole, and had paid the taxes for it. The settler, here, made pretension to no tract in particular; and his successors had their warrant laid on parts of two adjoining surveys. Had the settler procured a survey on his settlement alone, as he might have done by virtue of the eighth section of the act of 1793, the intervening lapse of time would have protected it; but his negligence disables his successors from retaining more than was in actual possession. They are consequently driven to a defence on the act of 1814, which, to avail them, must be not only constitutional but applicable to their case.

In performing the condition of settlement imposed by the act of 1792, the warranlees were exposed to resistance from a quarter not anticipated. The instances in which their lands were pre-occupied by settlers regardless of their rights are innumerable. In this predicament, to have attempted to enter, would have produced violence and the shedding of blood. It was justly said in Jones v. Anderson, 4 Yeates 375, that it would show but little knowledge of the spirit of the contest, to suppose that an actual settler would have yielded to the remonstrances of a warrantee ; and that so far from requiring the latter to proceed till he was actually resisted, the mild spirit of the law invites not to adventures which tend to a breach of the peace. These cases were not provided for. The proviso in the ninth section explicitly regards prevention by the public enemy. “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 land in the same manner as if the actual settlement had been made and continued.” Upon the happening, therefore, of the unforeseen contingency of prevention by actual settlers, while the warrant was in admitted force, the courts were compelled to dispose of it as they were persuaded the legislature would have done. They declared, in accordance with the purest ethics and the maxims of the common law, that the' settler should not gain an advantage by his wrong: and that, his pre- ‘ vention of performance was a dispensation with it. Such was the construction in the Attorney-general v. The Grantees, 4 Dall. 242; Buchanan v. Myer, 3 Yeates 586 ; Patterson v. Cochran, 1 Binn. 231, and Jones v. Anderson already quoted. Now, the settled construction of a statute is a part of it; and when it has become a rule of property, as this undoubtedly has, is no more to be disturbed than the express enactments of the statute itself. • Beside prevention by the public enemy, then, there was, at the passing of the act of 1814, another available justification for non-performance of the condition of settlement; and how far did the legislature intend to deprive the Warrantee of it? That act declares that he shall not recover without proof that he, or some one for him, “ did, within two years from the date of the warrant, go on the land so claimed, or attempt to go; and’ that he, or such person, was individually prevented by the enemies of the United States from settling said land; and that he, or such person, did persist two years, from the date of the warrant, to settle and improve the same, or cause the same to be done; and show circumstantially what attempts and what acts of persistence were made : or that he has made, or caused to be made, such settlement, residence and improvement as is required by the act of 1792, arid within the time therein specified.” The object of this was to hold the warrantee to strict proof of actual prevention by the enemies of the United States, where that'is the point of defence; and the clause is certainly not prima facie applicable to prevention by the wrongful occupancy of him who alleges the want of performance. It is said his case is embraced by the clause which says that the specified proof shall be made “ before any person claiming land north and west of the rivers Ohio and Alleghany, and Conewango creek, shall recover against an actual settler.” A literal application of the text would bar even the owner of a donation tract who was bound to make no settlement at all, and that was certainly no part of the design. JBut take the case of a warrantee bound to make a settlement within two years from the date of the warrant, who has been prevented by the intrusion of a wrongdoer in a time of profound peace. If superadded proof of prevention by the public enemy were exacted, he could not recover at all, for he could not prove a settlement, because he was prevented from making it by the party putting his defence on the want of it; and he could not prove that he was prevented by a public enemy, because there was none. If the disseisin of such a settler were protected, the rights of the parties would be referred, in the first instance, to the arbitration of force. In Bedford v. Shilling, 4 Serg. & Rawle 410, the act was deemed inapplicable to actions pending in order to protect the warrantee from costs incurred in the prosecutipn of an undoubted right; but it would be fraught with still more startling injustice to apply it so as to require impossible proof of conditions which were no part of the title. Beside, a law requiring the performance of any such condition would be a direct infraction of the constitutional provision which guards the sanctity of contracts; and a construction in favour of an admitted wrongdoer, therefore, cannot be admitted. Nor would it, in this instance, accord with the actual design. Indeed, the reverse is indicated by the letter; for it requires no ingenuity to show the settlement of the intruder to be the settlement of the warrantee, and as such, performance of the condition; for, as it must have been indifferent to the state whether it were performed by the settler or the warrantee, it will not be pretended that she might have issued a vacating warrant to a third person; and as the title of the intruder would be out of the question, the warrant and settlement would hold the land of course. The case would be analogous, in principle, to that of a patent purchased by one who had not the title, which enures to the benefit of him who has, insomuch as to make a second patent unnecessary, as was held in M’Coy v. Work, 5 Binn. 157; Duer v. Boyd, 1 Serg. & Rawle 203, and Gonzalies v. Hoover, 6 Ibid. 118. It may be said the words of the act require the warrantee to have made the settlement in person, or to have “ caused it to be done;” and that there is no privity between him and the settler. The meaning plainly is, that it shall have been made by the settler or some one in his stead; and it is clear that equity would turn the wrongful settler into a trustee. The true construction therefore is, that the protection of the act may not be invoked by him who did not enter after the warrantee had made default.

Still the letter requires proof of settlement within two years from the date of the warrant; and here the settler entered at a period more remote, though still within two years from the ratification of the treaty of pacification. The words, however, are the same as those of the act of 1792; and are to receive the same construction. That it was not originally a sound one, might be easily maintained; yet the state ought to be the last to complain of it. No lawyer can withhold his acquiescence from the conclusion of the supreme court of the United States in Huidekoper v. Douglass, 3 Cranch 1, that the condition was gone by the continuance of hostilities during the time limited for its performance. But our own court, borrowing the arbitrary doctrine of cy pres from the statutory jurisdiction of chancery over a peculiar subject, engrafted on the contract a legal condition of settlement after the pacification which had not been in the contemplation of any one. Equity may, perhaps, relieve against a condition under very peculiar circumstances, as in the case of a forfeiture for non-payment of rent, the clause of re-entry being in the nature of a penalty; but it is incompetent to enlarge the measure of performance, or impose a new one. The case of Norton v. Rouse, 1 Binn. 460, and the anonymous case in 2 Ch. Ca. 19, the only ones in which a chancellor ever presumed to add to a contract, are generally given up as indefensible. But in England, the power of controlling a gift to a superstitious use so as to appoint it to a use incontestably charitable, which is the archetype of the doctrine of cy pres as applied to the act of 1792, is vested in the crown, or, in other words, the chancellor, by the statutes 1 H. 6, c. 14; 15 R. 2, c. 5; 23 H. 8, c. 10, and 37 H. 8, c. 4, which, were they in force here, would not authorise the judges to interpolate a condition unconnected with the use. But such as it was, the state had the benefit of it; and an objection to it now, would come with a bad grace from her or those who claim by her title. It must, therefore, be taken for the established and rightful construction, that the entry of the warrantee to perform the condition of settlement, was congeable till the expiration of two years from the ratification of the treaty. Such, then, being the contract, it would be an infringement of it palpably within the constitutional prohibition, to legalise the entry of a settler within that period, a consequence to be avoided. The case of the defendants, therefore, stands on no better foundation than if the settler had entered within two years from the date of the warrant: and the provisions of the act of 1814, are plainly inapplicable to it.

The exception to the verdict is equally untenable. The purpose of the jury was to except, from the recovery, a part of the land protected by the statute of limitations; to effect which they designated it by natural marks and geometrical lines. What more could be done by men who had not explored the ground with a surveyor? They found for the plaintiff the land contained in his survey except “eight acres to belaid off as follows: beginning at the black oak or factory corner, thence down the creek so far as to include the house and stable, thence westwardly so far as to include eight acres by running north to the east and west line of said tract, thence east along said line to the place of beginning.” Now, had the word west been used for westwardly, even mathematical precision would have been attainable from this description; but less than mathematical precision is sufficient. In Massey v. Thomas, 6 Binn. 333, an award in ejectment finding a line between two given points was certain enough, though a single line includes nothing. There, it may be said, the course was precisely fixed; and that the word westwardly means no more here than tending to the west. Yet we must, of necessity, have regard to the common parlance of jurors suddenly called to act in these matters, and without assistance. They meant to except the improved land which had been all along in actual possession; and though they doubtless had a competent notion of the general bearings of its boundaries, they could not, without a previous survey, have designated them with extreme precision. Keeping their object in view, a surveyor would have no difficulty in laying off the excepted land; and as the verdict may be thus executed, it is certain enough.

Judgment affirmed.