Supreme Court of United States.
*10 Dallas, for the plaintiff.
M`Kean, (Attorney general of Pennsylvania) contra.
*65 MARSHALL, Ch. J. delivered the opinion of the court as follows:
The questions which occurred in this case, in the circuit court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by the legislature of that state, entitled "an act for the sale of the vacant lands within this commonwealth."
The 9th section of that act, on which the case principally depends, is in these words, "and be it further enacted," &c.
The questions to be considered, relate particularly to the proviso of this section; but to construe that correctly, it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant, before the title to the lands described therein, shall vest in him.
Two classes of purchasers are contemplated.
The one has already performed every condition of the sale, and is about to pay the consideration money; the other pays the consideration money in the first instance, and is afterwards to perform the conditions. They are both described in the same sentence, and from each, an actual settlement is required as indispensable to the completion of the title.
In describing this actual settlement, it is declared that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, "by clearing, fencing, and cultivating, at least, two acres for every hundred acres contained in one survey, erecting thereon, a messuage for the habitation of man, and residing, or causing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live."
*66 The manifest impossibility of completing a residence of five years, within the space of two years, would lead to an opinion, that the part of the description relative to residence, applied to those only who had performed the condition before the payment of the purchase money; and not to those who were to perform it afterwards. But there are subsequent parts of the act which will not admit of this construction, and, consequently, residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement.
The law requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language to be rendered intelligible. This change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading suggested by the counsel for the plaintiff, appears to be most reasonable, and to comport best with the general language of the section, and with the nature of the subject. It is by changing the participle into the future tense of the verb, and instead of, "and residing, or causing a family to reside there," and shall reside, &c. The effect of this correction of language, will be to destroy the repugnancy which exists in the act as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that in the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition; the settlement to be made within the space of two years from the date of the warrant, and the residence in five years from the commencement of the settlement.
This construction is the more necessary, because the very words, "such actual settlement and residence," which prove, that residence is required from the warrantee, prove also, that settlement and residence are, in contemplation of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a *67 settlement, no more requires a residence of five, than a residence of five hundred years: and of consequence, it is much more reasonable to understand the legislature as requiring the residence for that term, in addition to a settlement, than as declaring it to be a component part of a settlement.
The meaning of the terms settlement and residence being understood, the court will proceed to consider the proviso.
That part of the act treats of an actual settler, (under which term is intended, as well the person who makes his settlement the foundation of his claim to a warrant, as a warrantee who had made an actual settlement in performance of the conditions annexed to his purchase) and of "any grantee in any such original or succeeding warrant;" who must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced, are brought together in the same sentence, and terms are used appropriate to the situation of each, but not applicable to both. Thus, the idea of "an actual settler," "prevented from making an actual settlement," and after "being driven therefrom," "persisting in his endeavours," to make it, would be absurd. To apply to each class of purchasers, all parts of the proviso would involve a contradiction in terms. Under such circumstances, the plain and natural mode of construing the act, is to apply the provisions distributively to the description of persons to whom they are adapted, reddendo singula singulis. The proviso then would read thus, "Provided always, nevertheless, that if any such actual settler shall be driven from his settlement, by force of arms of the enemies of the United States; 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, 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 lands, in the *68 same manner, as if the actual settlement had been made and continued."
The two cases are, the actual settler, who has been driven from his settlement, and the warrantee, who has been prevented from making a settlement, but has persisted in his endeavours to make one.
It is perfectly clear, that in each case, the proviso substitutes something for the settlement to be made, within two years, from the date of the warrant, and for the residence to continue five years from the commencement of the settlement, both of which were required in the enacting clause.
What is that something?
The proviso answers, that in the case of an "actual settler," it is his being "driven from his settlement by force of arms of the enemies of the United States," and in case of his being a grantee of a warrant not having settled, it is "persisting in his endeavours to make such actual settlement." In neither case, is residence or persisting in his endeavours, at residence required. Yet the legislature had not forgotten, that by the enacting clause, residence was to be added to settlement; for in the same sentence, they say, that the person who comes within the proviso, shall hold the land "as if the actual settlement had been made and continued."
It is contended on the part of the defendant, that as the time during which persistance shall continue, is not prescribed, the person claiming the land must persist until he shall have effected both his settlement and residence, as required by the enacting clause of the act. That is, that the proviso dispenses with the time, and only with the time, during which the condition is to be performed.
But the words are not only inapt for the expression of such an intent; they absolutely contradict it.
*69 If the proviso be read, so as to be intelligible, it requires nothing from the actual settler, who has been driven from his settlement. He is not to persist in his endeavours at residence, or, in other words, to continue his settlement, but is to hold the land. From the warrantee who has been prevented from making a settlement, no endeavours at residence are required. He is to "persist in his endeavours," not to make, and to continue such actual settlement, but "to make such actual settlement as aforesaid." And if he does persist in those endeavours, he is to hold the land, "as if the actual settlement had been made and continued." The construction of the defendant would make the legislature say, in substance, that if the warrantee shall persist in endeavouring to accomplish a particular object, until he does accomplish it, he should hold the land as if he had accomplished it. But independent of the improbability, that the intention to dispense, only with the time in which the condition was to be performed, would be expressed in the language which has been noticed, there are terms used, which seem to restrict the time during which a persistance in endeavours is required. The warrantee is to persist in his endeavours, "to make such actual settlement as aforesaid." Now, "such actual settlement as aforesaid," is an actual settlement within two years from the date of the warrant. As it could only be made within two years, a persistance in endeavouring to make it, could only continue for that time.
If, after being prevented from making an actual settlement, and persisting in endeavours, those endeavours should be successful within the two years after which the person should be driven off, it is asked, what would be his situation?
The answer is a plain one. By persisting, he has become an actual settler; and the part of the proviso which applies to actual settlers, protects him.
If, after the two years, he should be driven off, he is still protected. The application of external violence dispenses with residence. The court feels itself bound *70 to say so, because the proviso contains a substitute, which, in such a state of things, shall be received instead of a performance of the conditions required by the enacting clause; and of that substitute, residence forms no part.
In a great variety of forms, and with great strength, it has been argued, that the settlement of the country was the great object of the act; and that the construction of the plaintiff would defeat that object.
That the exclusive object of an act to give lands to settlers, would be the settlement of a country, will be admitted; but that an act to sell lands to settlers, must have for its exclusive object, the settlement of the country, cannot be so readily conceded. In attempting to procure settlements, the treasury was certainly not forgotten. How far those two objects might be consulted, or how far the one yielded to the other, is only to be inferred from the words in which the legislative intention has been expressed. How far the legislature may have supposed the peopling of the district in question, to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by their own language. At any rate, if the legislature has used words, dispensing with residence, it is not for the court to say they could not intend it, unless there were concomitant expressions, which should explain those words in a manner different from their ordinary import. There are other considerations in favour of the construction, to which the court is inclined.
This is a contract; and although a state is a party. it ought to be construed according to those well established principles, which regulate contracts generally.
The state is in the situation of a person who holds forth to the world, the conditions on which he is willing to sell his property.
*71 If he should couch his propositions in such ambiguous terms, that they might be understood differently, in consequence of which, sales were to be made, and the purchase money paid, he would come with an ill grace into court, to insist on a latent and obscure meaning, which should give him back his property, and permit him to retain the purchase money. All those principles of equity, and of fair dealing, which constitute the basis of judicial proceedings, require that courts should lean against such a construction.
It being understood, that the opinion of the court on the two first questions, has rendered a decision of the third unnecessary, no determination respecting it has been made.
It is directed, that the following opinion be certified to the circuit court.
1st. That it is the opinion of this court, that under the act of the legislature of Pennsylvania, passed the 3d day of April, A.D. 1792, entitled "An act for the sale of the vacant lands within this commonwealth," the grantee, by a warrant of a tract of land lying north and west of the rivers Ohio and Alleghany and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon from the 10th of April, 1793, the date of the said warrant, until the 1st of January, 1796; but who, during the said period, persisted in his endeavours 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.
2d. That it is the opinion of this court, that a warrant for a tract of land lying north and west of the rivers Ohio and Alleghany and Conewango creek, granted in the year 1793, under and by virtue of an act of the legislature of Pennsylvania, entitled "An act for selling the vacant lands of this commonwealth," to a person, who, by force of arms of the enemies of the United States, was *72 prevented from settling and improving the said land, and from residing thereon from the date of the said warrant until the 1st of January, 1796, but who, during the said period, persisted in his endeavours to make such settlement and residence, vests in such grantee a fee simple in 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 contained 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.
JOHNSON, J.
I concur in the decision given by the court in this case; but there was a question suggested and commented on in the argument which has not been noticed by the court, but which appears to me to merit some consideration.
It was inquired by the counsel for the defendant, should the court adopt the principle, that persistance for two years is to be substituted for an actual settlement and residence, what is to be the effect of a partial prevention? Is the warrantee to be subjected to the necessity of making good his settlement, should the prevention cease or commence at any point of time during the two years without any, or under what limitation?
It is undoubtedly true, that any construction of a statute which will produce absurdities, or consequences in direct violation of its own provisions, is to be avoided. It were better not to depart from their literal signification than to involve consequences so inconsistent with the nature and very idea of legislation. But it does not appear to me that any embarrassment will attend the construction of this act which the court has adopted; that the case of a partial duration of the existence of the preventing cause is not within the view of the proviso; that it is not excepted from the operation of the enacting clause. It would be absurd to impose upon the warrantee the necessity of performing in a few months, perhaps at the most inconvenient season of the year, a condition for which the act proposes to hold out to him an indulgence *73 of two years; when prevented too by a cause not within his controul, and against which the state was bound to protect him. If such were the case now before the court, I should be of opinion that we must resort to general principles for a decision. With regard to the performance of conditions, it is a well known rule, that obstructions interposed by the act of God, or a public enemy, shall excuse from performance, so far as the effect of such preventing cause necessarily extends.
In cases of partial prevention, I should therefore be of opinion, that it would be incumbent upon the warrantee to satisfy the court that he had complied with the conditions imposed by the act, so far as he was not necessarily prevented by the public enemy.
It may appear singular that a deficiency, of a single day perhaps, should produce so material an alteration in the rights or situation of the warrantee. But the legislature of Pennsylvania were fully competent to make what statutory provisions they thought proper upon the subject; and the court is no further responsible for the effect of the words which they have used to express their intent, than to endeavour to give a sensible and consistent operation to them in every case that can occur.
[*] Present, Marshall, Chief Justice; Cashing, Paterson, Washington and Johnson, Justices.
