USA > Pennsylvania > A history of the region of Pennsylvania north of the Ohio and west of the Allegheny river, of the Indian purchases, and of the running of the southern, northern, and western state boudaries. Also, an account of the division of the territory for public purposes, and of the lands, laws, titles, settlements, controversies, and litigation within this region > Part 8
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Justice Smith concurred with Yeates, J., and Brackenridge, J., gave no opinion, having been retained at the bar for the Holland Company. He had also acted as attorney for settlers in some Western cases.
This doctrine followed previous decisions in respect to the nature of a settlement, which re- quired a personal residence as its prime charac- teristic, and not mere improvements on the land. (Ewalt v. Highlands ; McGlaughlin v. Dawson; Scott v. Williams; Morris v. Neighman.1 See, also, Hazzard v. Lowry, 1 Binney, 166.)
But the Commonwealth v. Coxe did not end the controversy on the 9th section. The Assembly was memorialized on both sides. This brought about the Act of 2d April, 1802,2 to raise what
1 2 Smith's L. in note, 208 to 211.
2 3 Ib. 506.
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was known as the "Feigned Issue," to try the questions in dispute. The preamble recites in full the 9th section of the Act of 3d April, 1792; the difficulties and disputes between the warrantees and settlers; the inability to secure a fair trial where so many persons are interested; and the fact that the Holland Land Company and the Population Company had applied to the Supreme Court for a mandamus to compel the Secretary of the Land Office to complete their titles; and also the complaints of these companies, and the appli- cations of the settlers to the Legislature for redress. It then proceeds to require the Supreme Judges to meet and devise a form of action for trying and determining the question, whether or not the warrants are void against the Common- wealth by reason of non-settlement; and whether grants of the Land Office are good founded upon prevention certificates given by Justices of the Peace, without other evidence of the nature and circumstances being given. The form thus de- vised by the Judges was to be transmitted to the Governor, who, with the assistance of the Attorney-General, was to carry it into effect. By it the questions of law and fact were to be heard and decided at Sunbury before the Judges of the Supreme Court and a jury. It was made com- petent, also, for the jury, under the constitutional
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direction of the Court, to decide upon the law and the facts, and, if they thought proper, to bring in a general verdict. Any of the parties could give evidence of the prevention certificates, and of the circumstances of the country at the time to which the certificates related, and any other fact tend- ing to illustrate the questions aforesaid. Further instructions were given to the Judges to provide for the admission of parties and for notices, and to require the Secretary of the Land Office to attend the trial, with such books, papers, and documents as they may specify, or he may deem material.
It is evident by the mode of decision of the law and fact by the jury, no injustice was intended to be done to the settlers. As a further protection, and to prevent confusion of title and lawsuits, it was enacted that the Secretary of the Land Office should grant no new warrant for land which he had reason to believe had already been taken up under a former warrant. On every application filed, proof should be made by one disinterested witness that the applicant was in actual posses- sion, specifying the time when possession was taken. If the decision of the court and jury should be in favor of the settlers, warrants were to be granted on payment of the purchase-money according to the priority of application.
The Governor was authorized to appoint not
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more than two counsel to assist the Attorney- General.
The case was made up and known as the Attor- ney-General v. The Grantees under the Act of April, 1792, and is found in 4 Dallas, 237 to 245. Yeates, Smith, and Breckenridge, JJ , met at Sun- bury, on the 25th of November, 1802, a jury was empannelled, and the case argued by Attorney- General McKean, W. Tilghman, and Cooper. Chief Justice Shippen did not attend. No one rep- resented the Grantees, the Holland Company hav- ing declined to appear, but their reasons for not discussing the subject were given in a letter to the Judges dated June 21, 1802, found at page 238 of 4 Dallas, signed by J. Ingersoll, W. Lewis, and A. J. Dallas. The decision in the case of the Commonwealth v. Coxe having been made by the same majority of the Judges, it is probable that the Chief Justice and the Holland Company thought it useless to attend.
The case was heard ex parte, and the opinion delivered by Judge Yeates, following in the track of his former opinion in Coxe's Case. He also discussed, with reference to authorities, the doc- trine of precedent, and subsequent conditions; ar- riving at the same conclusions he had before reached.
The decision may be summed up as follows :-
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1. "Prevention by force of arms of enemies does not absolutely dispense with and annul the condi- tions of actual settlement, improvement, and resi- dence; but it suspends the forfeiture by protract- ing the limited periods. Still the condition must be performed by the warrantee cy pres, whenever the real terror arising from the enemy has sub- sided, and he shall honestly persist in his endeav- ors to make such settlement, improvement, and residence, until the conditions are fairly and fully complied with."
2. " The patents and the prevention certificates recited in the patents are not conclusive evidence against the Commonwealth, or any person claim- ing under the Act of 3d April, 1792, of the patentees having performed the conditions en- joined on them, although they have pursued the form prescribed by the Land Office. But the cir- cumstance of recital of such certificate will not ipso facto avoid and nullify the patent if the actual settlement, improvement, and residence, pointed out by law, can be established by other proof."
The jury found a general verdict for the plain- tiff, and judgment was rendered in favor of the Attorney-General against the Grantees.
The Holland Company, however, was not con- tent to abide by the decisions of the State Court. Another action was brought, therefore, in the
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Circuit Court of the United States, sitting at Phila- delphia, before Washington, J., of the Supreme Court of the United States, and Peters, District Judge. The case is entitled Huidekoper's Lessee v. Douglass (found in 4 Dallas, 392). The plain- tiff claimed title under the Holland Company, and the defendant was a settler under the Act of 3d April, 1792. In order to test the question fully, the case went up, by a division of opinion of these Judges, to the Supreme Court of the United States. The opinion in the latter Court was de- livered by Marshall, C. J., holding the law other- wise than as decided by the State Court. The result is thus stated :-
"A grantee by warrant under the Act of 1792, who by force of arms of the enemies of the United States was prevented from settling and improving said land and residing thereon from the 10th of April, 1793, the date of the warrant, until the first day of January, 1796, but who during the said period persisted in his endeavors 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."
And further, in such case the grantee "persist- ing in his endeavors to make such settlement and residence, vests in such grantee a fee simple in
3
:
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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 con- tained 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."
The effect of this judgment in favor of the warrantees would have been disastrous upon the interest of the State. As nearly the whole section north of the Ohio and west of the Allegheny and Conewango (excepting the sold Depreciation and drawn Donation Lots) had been taken up under warrants numbered by the thousand, it would have left this portion an unsettled wilder- ness, in violation of the fixed policy of the State to fill it up with settlers under the warrants, as well as with those settling for themselves. But the question being purely a State one, and her Judges not being bound by the doctrine of the Supreme Court of the United States (except in single cases of exceptional jurisdiction), they persisted in their interpretation of the 9th section of the Act of 3d April, 1792, in order to maintain the well settled and absolutely essential improvement policy of
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the State, and their opinion became the law of the titles under that Act.
Yet there were Judges of the State who, bound by and following the State decisions, thought the opinion of Chief Justice Marshall the only sound doctrine of the Act. Such was the opinion of Chief Justice Gibson, whose early impressions were eastern, and whose carlier opinions were not always followed by himself in later years. Notably this was the case in the application of the doctrine of the Statute of Limitations in cases between warrantees and settlers. He began in the strictest pedis possessio of the settler, as an- nounced in Miller v. Shaw (7 S. & R. 137), and ended in the extreme doctrine of a presumptive ouster, as labored in McCall v. Nealy (3 Watts, 71), a doctrine which lay at the bottom of the famous tilt between Black and Lewis in Barney Hole's Case.
It seems to me, however, that the interpretation of the 9th section of the Act of 1792, as given in Huidekoper's Lessee v. Douglass, cannot be sus- tained. It will be seen that Chief Justice Mar- shall regarded the section as inconsistent and repugnant in terms, and therefore changed its reading in order to reach the conclusion he came to. It will be noticed also that his interpretation is wholly literal, so much so it is obnoxious to the
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maxim, qui hæret in litera, hæret in cortice; and fails to regard the most important feature which characterized the whole law. Had he recurred to the second section he would have been im- pressed with its express language, which ac- corded with the entire current of the legislation of the State in reference to these wild lands. It reads thus :1 "That from and after the passing of this Act, all other lands belonging to this Com- monwealth, and within the jurisdiction thereof, and lying north and west of the rivers Ohio and Allegheny, and Conewango Creek, except such parts thereof as heretofore have been, or hereafter shall be, appropriated to any public or charitable use, shall be and are hereby offered for sale to per- sons who will cultivate, improve, and settle the same, or cause the same to be cultivated, improved, and settled, at and for the price of," etc.
In direct accordance with this language the ninth section was made applicable to warrantees as well as settlers. It says "no warrant or survey . . . shall vest any title in or to the lands therein men- tioned 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 after the date of the same, make or cause to be made an actual settlement thereon, by clearing," etc.
1 3 Smith's L. 71.
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Again, this section applies to original settlers as well as warrantees, and therefore must be con- strued in view of the expressed purpose of the Act to apply to both classes.
Thus the law never offered these Western lands for sale, except upon the very condition of settling the same, and thus carrying population into the new country. Besides, this was in accord with all other legislation, expressing this policy of the State, and to be considered in pari materia. For example, the Acts of December 21, 1784,1 Septem- ber 16, 1785,2 December 30, 1786,3 April 22, 1794,4 September 22, 1794,5 and April 2, 1802.6 This policy is stated in express language in the preamble to the Act of 18th April, 1795 (3 Smith's L. 233), laying out the towns of Erie, Franklin, Warren, and Waterford, viz: "In order to facilitate and promote the progress of settlements within this Commonwealth, and to afford additional security to the frontiers thereof."
The effect of the doctrine of the United States Court would have left this entire northwest region an unreclaimed wilderness, without power in the State to remedy it. For a title vested in fee by prevention, would leave the lands under the sole
1 2 Smith's L. 274. 2 Ib. 342. 3 Ib. 395.
+ 3 Ib. 184. 5 Ib. 193. 6 Ib. 510.
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control of the grantees who pay their money, and they could settle or sell them when and how they would please. These lands would have become the subject of mere speculation to be sold in blocks or otherwise, as the interests or fancy of the capitalist owners might have dictated.
The State doctrine was not only in accord with the general policy of the State, as set forth in the Acts just referred to, but with the very purpose, intent, and language of the Act of 1792 itself. Besides, it did no injury to the warrantees. They were bound to make a settlement and improve- ment, and the State doctrine merely suspended performance, giving them the opportunity of complying with the condition required in order to "vest title." They were favored by delay, not injured, in view of the express language of the laws.
It will be seen, therefore, it was the merest technicality to apply the common law doctrine of subsequent conditions, in ordinary contracts be- tween man and man, to a question of great State policy, intended to serve the welfare of a frontier population and important State interests.
Again, the State courts, as the logical conse- quence of their doctrine, held that the warrantee was protected against any adverse entry before the 22d of December, 1797; in other words, until
10
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two years had expired after the ratification of the treaty of Fort Granville. And, further, they held that an adverse entry was still unlawful, even after the 22d of December, 1797, without a vaca- ting warrant procured from the State.
Before noticing this feature more particularly, I may refer to several Acts of the Assembly bearing on these titles, and first the Act of 22d April, 1794.1 It provided that no application should be received after the passage of the Act for unimproved land in the new purchase or the Tri- angle at Erie. Also that no warrant should issue after the 15th of June for lands in the new pur- chase and the Triangle, except to persons claiming by settlement and improvement ; and all applica- tions on file after that date on which the purchase- money had not been paid should be void. Excep- tions were made in favor of persons who had credits for balances due in the Land Office. Another provision in favor of settlers was that indescriptive warrants should not affect their title by actual improvement before the entry of the warrant on the deputy-surveyor's books.
This was followed by the Act of 22d September, 1794,2 which forbade the receiving of applications for land in any part of the Commonwealth except for lands on which a settlement has been made,
1 3 Smith's L. 184. 2 Ib. 193.
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grain raised, and a person residing thereon. It also made void all applications filed after April 1, 1784, on which the purchase-money has not been paid. There was a proviso in favor of a person having a credit in the Land Office.
Then came the Act before referred to on which the feigned issue was raised, viz., April 2, 1802.1 The fourth section provided that after its passage no new warrant should be granted for land the Secretary had reason to believe had been taken up under a former warrant, and provided for filing the application and giving a copy to the applicant. At the end of this section is an important pro- vision, which, being omitted in the edition of Pur- don of 1830, led to important results to be referred to hereafter.
Following in the wake of the Act of 1802 an Act was passed April 3, 1804,2 which during its limited existence of two years was important to. the settlers. Within that time it gave the effect of vacating warrants to the applications of set- tlers under the Act of 3d April, 1792, describing particularly the lands applied for, and vouching such other requisites as are provided for in the. Act of 22d September, 1794. The Act was en- titled " An Act for ascertaining the right of this
1 3 Smith's L. 506.
2 4 Ib. 199.
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State to certain lands north and west of the riv- ers Ohio and Allegheny and Conewango Creek." The second section authorized the Governor to employ able counsel to attend to the interest of the State in pending suits in the United States Court.
This Act was continued in force until the 1st April, 1807, by an Act of 2Sth April, 1806.1 In Shippen v. Aughenbaugh,2 decided in 1806, Judge Yeates held that an application under the Act of 1804, in the nature of a vacating warrant, taken out after suit brought, was not evidence.
In Jones v. Anderson the Act of 18043 was dis- cussed in the Supreme Court by S. B. and A. W. Foster on one side, and by Semple and Baldwin on the other. It was again held that an applica- tion under the Act of 1804, after suit brought, was not competent evidence. This case also decided that an entry by a settler before the ter- mination of the two years allowed the warrantee after the ratification of the treaty of peace, was ipso facto a prevention, and gave no inception of title as against the warrantee. The doctrine of illegal entry by the settler within the two years is reasserted in Barnes v. Irvine (5 Watts, 497).
The controversies under the vacating warrant
1 P. L. 1806, p. 636. 2 4 Yeates, 328. 3 Ib. 569.
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clause of the 9th section may now be referred to. As has been stated, the State Courts held that an entry by a settler, even after the 22d December, 1797, was unlawful, without having obtained a vacating or new warrant. It was so held because the Commonwealth had by the terms of the sec- tion prescribed this as the only mode of asserting her own title. Owing to ignorance, bad advice, and presumption, few settlers, after 22d December, 1797, had availed themselves of the statutory mode of acquiring title after the default of the war- rantee. Still, owing to the unsettled state of the country, and the difficulty of pursuing their claims in the local courts, the warrantees generally suf- fered delay. A few, by reason of non-residence in the State, brought suits in the United States Court in Philadelphia, there being no Western District in Pennsylvania until the year 1819. But those who brought suits in the East found great difficulty in enforcing their judgments by execution. The spirit of resistance prevailed so sternly among the settlers, who thought the at- tempt to oust them from their homes was ruthless, it became difficult to serve legal process. An instance of this occurred in Beaver County, in 1808. William B. Irish, the Marshal, in attempt- ing to deliver possession in the case of William Fulks, a settler on Little Beaver Creek, was way-
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laid and fired upon, and one of his posse, a man named Hamilton, was killed.
The consequence was that the titles in North- western Pennsylvania remained unsettled for many years. In 1810 Mr. Smith, in the second volume of his edition of the Laws, page 205, refers to this state of affairs in these words :-
"The population and improvement of the coun- try have been imperilled and restricted. Nineteen years have elapsed, but the dispute is still unde- cided; and whilst to the north and to the west of these controverted lands the country increases with industrious citizens and smiles with cultiva- tion, here the half-finished cabin and remaining forests proclaim that the land is without a certain owner."
This state of title led to a new course of legis- lation in the hope of ending disputes by compro- mise between the warrantees and settlers. The first Act is that of 20th March, 1811,1 " for the set- tlement of certain disputed titles to lands north and west of the rivers Ohio and Allegheny, and Conewango Creek."
The preamble recites that the improvement of these lands is still impeded. That the opinion is entertained that persons calling themselves the
1 5 Smith's L. 206.
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Holland Land Company, the Population Com- pany, and North American Land Company, and others claiming lands by warrants forfeited their titles and claims by non-performance of the con- dition of settlement, etc., that this title still re- mains in the Commonwealth, and that actual settlers have entered and claim title, and in some cases have suffered judgments in ejectment, and finally the importance of settling these disputes.
It enacts that in all cases of agreement between the original warrant-holder and settlers, and where the required settlement and improvement have been made according to the Act of 1792, the Commonwealth releases her claims. Where an actual settler has entered and made the required settlement and improvement, and has compromised with the original warrantee by receiving one hun- dred and fifty acres surveyed to him, or where either has purchased the right of the other, the Commonwealth ceases to have further claim, and will confirm the title. And where a settler has made an adverse actual settlement and improve- ment, and purchased a part of the tract to include and secure his improvement, the Commonwealth will release title on the warrantee conveying one hundred and fifty acres of the tract in considera- tion of the settlement. And an actual settler who has entered and within two years made the im-
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provement required, but has abandoned the tract before the full time of residence has been com- pleted, shall, on return and completing his actual settlement, be entitled to the benefits of this Act. So an actual settler who had been evicted by legal process shall be entitled to the benefit of the Act upon the warrantee releasing to him one hundred and fifty acres and allowance by survey, or if either party purchase the right of the other the Commonwealth will cease to have claim to the tract, and will ratify the title. Where no settle- ment has been made, but the warrantec, before the 1st June, 1814, shall agree with any person to make the settlement before that day, and will agree to release to him one hundred and fifty acres and allowance by survey, and the settlement shall be made according to the law, the Commonwealth will cease to have claim and will confirm and ratify the title. Certain other provisions were made re- specting prevention patents, new warrants already taken out, granting of patents, and evidence to be produced, etc. etc. The Act ended with this pro- viso: That nothing should prevent the Common- wealth from asserting her right of forfeiture under the Act of 1792, where the warrantees and settlers fail to embrace the provisions of this Act.
The terms of this Act are conclusive of the prime and lasting intention of the State to provide
1
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for the actual settlement and improvement of these wild lands.
Those parts of the Act of 1811, which would expire by limitation, were revived and continued until April 1, 1824. (See Acts February 21, 1814, March 24, 1818, March 29, 1819, April 2, 1822.1)
Probably the most important legislation chang- ing the condition of the warrantees and aiding the course of the settlers is found in the Act of 24th March, 1814.2 Prior to this Act it was a presump- tion, from the state of the country and the Indian war, as held by the courts, that the warrantee was prevented from making the required settlement and improvement before the ratification of Wayne's treaty on the 22d December, 1795.
The Act is entitled "An Act explanatory of an Act for the sale of vacant lands within this Com- monwealth," and enacts that before a warrantee for land north and west, etc., shall recover against an actual settler or his representative, he shall prove to the satisfaction of the Court and jury that he was individually and in fact prevented by the enemies of the United States from settling the land, and that within two years from the date of his warrant he did persist; and what acts of per-
1 6 Smith's L. 107, 380; 7 Ib. 138, 240, 598.
' Ib. 130.
!
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sistence were made; and that his warrant was fairly obtained and executed. Then came a pro- viso which enabled him to preserve his right, and at the same time enabled the settler to obtain the one hundred and fifty acres contemplated in the compromise Act of 1811. This was a conveyance by the warrantee to the settler of one hundred and fifty acres within two years. If the settler refused to accept it, he lost the benefit of the Act of 1811. This Act was continued in force until April 1, 1824, by Act of April 2, 1822.1
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