Joseph Foxcroft, Plaintiff In Error v. David Mallett, Defendant

• Decision Date: 01 January 1846
• Citation: 45 U.S. 353,11 L.Ed. 1008,4 How. 353
• Parties: JOSEPH E. FOXCROFT, PLAINTIFF IN ERROR, v. DAVID MALLETT, DEFENDANT
• Court: U.S. Supreme Court

45 U.S. 353

4 How. 353

11 L.Ed. 1008

JOSEPH E. FOXCROFT, PLAINTIFF IN ERROR, v. DAVID MALLETT, DEFENDANT.

January Term, 1846

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maine.

It was a writ of right sued out by David Mallett, an inhabitant of New Hampshire, demanding two lots of land situated in Lee, in the county of Penobscot, and State of Maine, being lots numbered eleven in the fourth range, and eleven in the fifth range, containing two hundred acres, more or less, in said town of Lee.

As an illustration of the chain of title, on the part of both plaintiff and defendant, the reporter has prepared the two following diagrams, showing the title as exhibited upon the trial by the plaintiff and defendant respectively.

On the 19th of February, 1805, the State of Massachusetts passed the following resolution.

No. 1.

'Resolve on the Petition of the President and Trustees of Williams College, granting them a Township of Land, with a Proviso. February 19, 1805.

'The committee of both Houses, to whom was referred the petition of the President and Trustees of Williams College, praying the aid of government to enable them to build a chapel for the performance of divine service, and for keeping the College library and apparatus, having examined the origin, rise, and progress of that seminary, from its institution to the present time, together with the aid heretofore afforded by the government, and the existing state of its funds, beg leave to observe, that the funds granted by the original donor and the government have, in the opinion of the committee, been judiciously applied to the object of the institution, and with success exceeding the most sanguine expectations, and that the present state of the College affords a reasonable and pleasing expectation of its future extensive benefits to society, and that a chapel, for the purposes above mentioned, would effectually promote the same; and as the encouragement and grants of the government to that College have not been equal to those made to other seminaries in the Commonwealth, the committee ask leave to report the following resolve, which is submitted by Ezra Starkweather, per order.

'Resolved, For reasons set forth in the petition, that there be, and hereby is, granted one township of land, of the contents of six miles square, to be laid out and assigned from any of the unappropriated lands belonging to the Commonwealth in the District of Maine, excepting the ten townships lately purchased of the Penobscot Indians, the same to have vested in the President and Trustees of Williams College and their successors for ever, for the use, benefit, and purpose of supporting the said College, to be by them holden in their corporate capacity, with full power and authority to settle, divide, and manage the same, or to sell, convey, and dispose thereof, in such way and manner as shall best promote the interest and welfare of said College; the same to be laid out under the direction of the committee for the sale of Eastern lands, at the expense of the said corporation, and a plan thereof to be lodged in the secretary's office.

'Provided, The trustees of said College, or their assigns, shall cause to be settled fifteen families in said township within twelve years from the passing of this resolve; and also, that there be reserved in said township three lots, of three hundred and twenty acres each, for the following uses; namely, one lot for the first

settled minister; one lot for the use of the ministry; and one lot for the use of schools, in said township.'

And on the 27th of January, 1820, the following.

No. 2.

'Resolved, That the commissioners of the land-office be, and they hereby are, authorized and empowered to satisfy a grant of a township of land of the contents of six miles square, made by a resolve of the nineteenth of February, eighteen hundred and five, to the President and Trustees of Williams College, by locating the same, and conveying the said corporation township number three, in the second north of Bingham's Penobscot purchase, the same being numbered four, as surveyed by Alexander Greenwood. Provided, said grantees, or their assigns, shall first pay to said commissioners the expense of surveying and locating said township, and give security to the Commonwealth in a manner satisfactory to said commissioners, that they will, within one year from the passing of this resolve, cut out a road, two rods wide, from the termination of the road commonly called the St. John's Road (which has been opened, under the direction of said commissioners, from Penobscot River into township number two in the first range) to said township to be conveyed, and clear a travelled path therein of one rod in width; and that within two years they will clear a like road through said township, so to be conveyed, and make the necessary causeways and bridges thereon, all in a manner to be directed by said commissioners; and within three years will place on said township thirty families as settlers, of the description named in the act for promoting the sale and settlement of the public lands in the District of Maine; also reserving in said township the usual public lots.'

On the 15th of February, 1820, the commissioners executed a deed to the College, in which they recite the preceding resolution and proceed thus:——

'Now, therefore, know ye, that we, the undersigned, whose seals are hereunto affixed, appointed commissioners for promoting the sale and settlement of the public lands in the District of Maine, conformable to an act passed the fifteenth day of February, eighteen hundred and sixteen, by virtue of powers vested in the undersigned, and pursuant to the resolve of the twenty-seventh day of January, eighteen hundred and twenty, herein recited, do by these presents, in behalf of the Commonwealth aforesaid, assign, relinquish, and quitclaim to the President and Trustees of William's College, and their successors for ever, one township of land, of the contents of six miles square, lying in the county of Penobscot, as the same was surveyed by Alexander Greenwood, in the year of our Lord one thousand eight hundred and eleven, bounded and described as follows; namely, southerly on township number three, in the first range; westerly on located land; northerly on unlocated land; and easterly on township numbered four, in the second range, containing twenty-three thousand and forty acres; conditioned, however, that the said grantees, their successors and assigns, shall lay out three lots of three hundred and twenty acres each, for public uses. One lot for the first settled minister, his heirs and assigns; one lot for the use of the ministry; and one lot for the use of schools, in said township.

'To have and to hold the aforegranted premises to the President and Trustees of Williams College, their successors and assigns, on the conditions aforesaid, for ever. In witness whereof, we have hereunto set our hands and affixed our seals, this fifteenth day of February, in the year of our Lord one thousand eight hundred and twenty.

EDWARD H. ROBBINS. [L. S.]

LATHROP LEWIS. [L. S.]

JOSEPH LEE. [L. S.]

'Signed, sealed, and delivered in presence of

SAM'L REDDINGTON.

GEORGE W. COFFIN.'

On the same day, namely, the 15th of February, 1820, the treasurer of the College executed the following deed to Nathaniel Ingersoll.

'Know all men by these presents, that I, Daniel Noble, of Williamstown, in the county of Berkshire and Commonwealth of Massachusetts, esquire, treasurer of the corporation of Williams College, for and in consideration of the sum of four thousand six hundred dollars, secured to be paid to said corporation by Nathaniel Ingersoll, of the town of New Gloucester, in the county of Cumberland and Commonwealth aforesaid, have given, granted, sold, and conveyed, and by these presents, in behalf of said corporation, do give, grant, sell, and convey unto the said Nathaniel Ingersoll, a township of land lying in the county of Penobscot and Commonwealth aforesaid, and containing twenty-three thousand and forty acres, as the same was surveyed by Alexander Greenwood, in the year one thousand eight hundred and eleven, bounded and described as follows; namely, southerly on township number three in the first range; westerly by unlocated land; northerly by unlocated land; and easterly on township number four in the second range, the same being township number three in the second range of townships north of Bingham's Penobscot purchase, and numbered four by said Greenwood; conditioned, however, that the said Ingersoll, his heirs and assigns, shall lay out three lots of three hundred and twenty acres each, for public uses; one lot for the first settled minister, his heirs and assigns; one lot for the use of the ministry; and one lot for the use of schools in said township. To have and to hold the aforegranted premises to the said Nathaniel Ingersoll, his heirs and assigns for ever, on the condition aforesaid; and the said Daniel Noble, treasurer of the corporation of Williams College, covenants with the said Nathaniel Ingersoll, that he has good right to sell and convey the premises aforesaid, and that said corporation shall warrant and defend the same, on the condition aforesaid, to the said Ingersoll, his heirs and assigns for ever, against the lawful claims and demands of all persons.

'In witness whereof I have hereunto set my hand and affixed the seal of the corporation of Williams College, this fifteenth day of February, in the year of our Lord one thousand eight hundred and twenty.

DANIEL NOBLE. [L. S.]'

'Signed, sealed, and delivered in presence of us.—the word 'each' being first interlined in the twenty-sixth line of the first page.

LATHROP LEWIS.

GEORGE W. COFFIN.'

'Suffolk ss. Boston, 16th February, 1820.

'Then personally appeared the honorable Daniel Noble, in his said capacity as treasurer of said...