Banton v. Crosby

Emery, J. The published opinion in Millett v. Mullen, ante, p. 400, governs this case to the extent of determining that the defendants have no title, and that the plaintiff’s predecessors in title, notwithstanding their delinquency in not paying state taxes, have had revived in them by the state an heritable and conveyable title good against strangers to the state’s title. The only remaining question is what of that original title the plaintiffs deraign from those predecessors. The demanded land is Lot No. twenty-nine in Township Two, Range Seven, W. E. L. S. The plaintiff deraigns title from Jonathan Bartlett a revolutionary soldier and a beneficiary under sundry resolves of Massachusetts granting lands to revolutionary soldiers. The other heirs of Jonathan Bartlett for a consideration released and quitclaimed their interest in such land as such heirs and of their brother, Samuel Bartlett, April 10th 1828. The title to Samuel Bartlett has admittedly come to the plaintiff. Nearly two years afterward, on February 10,1830, the Land Agent of Massachusetts, acting under the above named Resolves, executed a deed of Lot twenty-nine to “ the heirs and assigns of Jonathan Bartlett,” which deed appears to have come to the possession of Samuel Bartlett. The defendants now contend that the quitclaim deed to Samuel Bartlett from the other heirs of Jonathan Bartlett did not pass the title afterward conveyed to them as heirs of Jonathan Bartlett by the subsequent deed of 1830, and hence that at the most the plaintiff shows title to only Samuel Bartlett’s share as such heir in one-tenth. [442] We do not think this contention can be sustained. The deed of February 10, 1830, is not the origin nor foundation of the Bartlett title. By its own terms it suggests a prior title. The granting clause is “give, grant, convey and confirm.” The prior legislative resolves are referred to as the authority for executing the deed. The Jonathan Bartlett whose “heirs and assigns” are eo nomine grantees, is described as a revolutionary soldier within the purview of the resolves. The deed does not fairly purport to be itself a grant of the land, but rather evidence of such a grant, an identification or confirmation of a title, rather than a creation of a title. Referring to the Resolves themselves, the language of the first Resolve, that of March 5, 1801, is, “Resolved: that there be, and hereby is granted to each non-commissioned officer and soldier, etc., two hundred acres of land, etc.” And again in the same Resolve, it was “ further Resolved: that where any such non-commissioned officer or soldier has deceased or shall decease before he shall get possession of the land hereby granted to him, his children or widow aforesaid shall be entitled to tbe same.” The Resolve of June 19, 1801, provided for surveying the necessary lands into two-hundred acre lots, and that the lots thus surveyed should “ be assigned to the several persons claiming and being entitled to the same as aforesaid.” By the Resolves of February 19, 1813, and June 17, 1820, further time and further facilities were granted for proving the claims of persons claiming under the former Resolves. The Resolve of March 4, 1828, was in the words following: “ Resolved: That there be, and hereby is granted to each non-commissioned officer and soldier, who enlisted into the American Army to serve during the revolutionary war with Great Britain, and who were returned as a part of this state’s quota of said army, and who did actually serve in said army the full term of three years, and who was honorably discharged, and to their heirs and assigns, two hundred acres of land to be held in fee simple from the date hereof, those who have heretofore drawn lots to retain the lots they have severally drawn, and those who have not yet drawn lots, are hereby permitted to draw the same from the undrawn lots remaining in said Mars Hill township any time within five [443] years from the date hereof, any provisions or conditions in the former resolves on this subject to the contrary notwithstanding.” It is not questioned that Jonathan Bartlett was a revolutionary soldier and shown to be completely within the provisions of the foregoing resolves; — nor is it questioned that Massachusetts owned the land granted. The deed of the other heirs of Jonathan Bartlett to Samuel Bartlett was given after the Resolve of March 4, 1828, had gone into effect. We think it evident from the language of the Resolves that the heirs of Jonathan Bartlett then had (Jonathan Bartlett having deceased) a vested grant, or title, or interest which they could convey or assign. The particular lot of two hundred acres which might be assigned to them was perhaps not then designated, or ascertained, but the right, the title, was already created and granted to them by the Resolves. The designation of the lot would inure to whomsoever they should assign or convey their title. In Leavenworth, &c. R. R. Co. v. The United States, 92 U. S. 733, an Act of Congress had declared, “That there be, and is hereby granted to the State of Kansas for the purpose of aiding in the construction [of two proposed railroads with branches of which the general route was described] every alternate section of land, designated by odd numbers for ten sections in width on each side of said road and each of its branches.” Of course, where the granted sections would finally be located could not be ascertained until the lands were surveyed and the railroads and branches were located. The court said: “There be and is hereby granted,” are words of absolute donation and import a grant in praesenti. . . They vest a present title in the State of Kansas, though a survey of the lands and a location of the roads are necessary to give precision to it, and attach it to any particular tract. The grant then becomes certain, and by relation has the same effect upon the selected parcels as if it had specifically described them.” In Schulenberg v. Harriman, 21 Wall. 44, it was held that a similar act in favor of Wisconsin passed a present interest in the lands though the sections were to be afterward located. In Mayo v. [444] Libby, 12 Mass. 339, the language of the Resolve of June 19, 1795 was: “Resolved that there be and is hereby released to each of the inhabitants of the town [of Hampden] who settled . . . one hundred acres of land to be held in severalty and to be laid out, etc.” The committee for the sale of Eastern lands afterward in 1805, the 100 acres having been then run out, gave a deed of the same in the name of the Commonwealth. It was held that the grant was by the Resolve and not by the deed. In Sargent v. Simpson, 8 Maine, 148, by a Resolve of Massachusetts a certain quantity of land in Sullivan was “.confirmed and granted” to each of the persons named in a report of a commissioner, and the selectmen were authorized and directed to give deed accordingly. It was held that the title was created by the resolve and not by the deed, and where the original beneficiary had disposed of his title by will, a subsequent deed from the selectmen to his “heirs” by that designation gave them no title as against the prior grantee of the beneficiary. It is to be further noted that the deed in the case at bar was made “ unto the heirs and assigns of Jonathan Bartlett.” The insertion of the word “ assigns” indicates that the purpose of the deed was to confirm a prior title to whomsoever the owners of that title might have assigned it. It was not decided in Chandler v. Wilson, 76 Maine, 77, that the Resolve of 1828 did not make a grant in praesenti. The question there was not whether the Resolve vested a fee, but in whom the fee vested, whether in the soldier himself only, or in his assignee by lawful conveyance. The soldier had assigned his right and title and the Land Agent thereupon made the deed to the assignee. The grant, however, had been made by the Resolve, and the deed was merely confirmatory of the previous grant, by indicating its proper recipient. In any view of the case we think the whole title, whether under the Resolves alone, or under them and the deed combined, vested in Samuel Bartlett. That his title has come to the plaintiff is not questioned. According to the terms of the report the mandate must be, Judgment for the plaintiff. Damages assessed at one dollar.