Bussey v. Luce , 2 Me. 367 ( 1823 )

Mellen C. J.

delivered the opinion of the Court.

We have no doubt that the fee of all the lands described in the deed of July 20, 1799,-passed to Knox and others, excepting the lots occupied by any settler on the tract, not exceeding one hundred acres to each settler, as specified in the resolve of February 23, Í798. The fee of such lots remained in the Commonwealth, so that the settlers thereon might afterwards “ be quieted in their settlements in such manner as the General “ Court” should “ direct.” The tenant claims under Abel Hardy, and under a deed made to him by the agents of the Commonwealth, March 3, 1807, on the ground of his having been in the occupancy of the demanded premises' as a settler, according to the language and intent of the resolve before mentioned. If such was his occupancy and character, the deed of the agents to him was effectual, his title is good, and the verdict must stand.

The commissioner appointed under the resolve of March 3, 1803, pursued its directions, — notified Gen. Knox who appeared by his attorney at the time and place appointed, and by witnesses and arguments opposed the claims of the settlers; — after ¡a full hearing he made return of his proceedings and of the names of those persons who were entitled to their respective lots, — and among others the name of Hardy, who, in virtue of this decision and return of the commissioner, received the deed from the agents under which the tenant now claims, and on which he places his defence. It is contended by the counsel for the demandant, that the legislature, in the resolve of February 23, 1798, only reserved to themselves the right of prescribing the manner in w'hich settlers should be “ quieted in their settlements,”-7-but not the right of deciding themselves, or by any ...agents of the Commonwealth, who were in fact settlers within the pieaning of that resolve ; — and that of cpurse the proceedings under the resolve of March 3,1803. were never binding on Gen. Knox or the demandant, and therefore parol proof ought to have been admitted to shew that Hardy never occupied thpt lot as a settler, according the resolve of February 23, 1798. — But in the first place there are strong reasons for believing that Gen. Knox solicited or consented to the passing of the resolve of March 3, 1803. The preamble states that a former survey had been made ex parle, because notice of such survey “ unis fortunately was not received by said Knox,” and that some irregularities were suggested to have taken place “ in the course of-i1: said, business.” — In the next place it would seem that the com-; missioner wpuld have had nothing to decide, unless the claims. of the occupants were proper subjects for his consideration and decision. In.deciding on their claims he must necessarily decide who were settlers occupying, and who were not. He had nothing to do with the price of the lands; — that had been previously settled by Ballard. The provisions of the resolve of 1803 may thus serve to aid us in the construction of that of 1798. But even if there had been no. reservation in the re-,, solve of 1798, still, when Knox appeared by his attorney be-; fore the commissionei-, governing himself by the resolve of 1803, urging his own claims, and contesting those of the settlers, — it is too late for him, or those claiming under him, to object to the decision of this equitable jurisdiction. The whole conduct of Knox carnes proof of an acquiescence in such decision, as. it does not appear that he ever after contested the facts on. which the decision was. founded, or objected to the giving pf {deed by the agent- The language of the last resolve is positive that the certificate of the commissioner should be considered as evidence of the settler’s title, and entitlp him to a deed, on payment of the estimated value ; which deed he has received, and^ as we must presume, in virtue of such certificate. No other tribunal was cqntemplated, or ought, in such case, to assume jurisdiction-- We think the opinion and instructions of the, judge to f.hp jury were correct, and accordingly there must be

Judgment, on. the verdict$