Nottingham v. Amwell

Carpenter, J. If the counsel for the township of Nottingham fail in either of the positions taken by him, the order of the Sessions must be affirmed. . Whether the settlement of a bastard child remains at the place of settlement of the mother at the time of its birth, or whether its settlement follows that of the mother subsequently acquired, depends upon the construction of our statute. At common law, the place of the settlement of a bastard child was generally at the place of its birth. An accidental delivery elsewhere might therefore change the place of settlement, or rather give it a different place of settlement from that of the mother. This frequently led to the fraudulent removal of women about to give birth to such children to other places, in order to cast the burthen of maintenance upon some township or precinct not properly chargeable. After reciting this mischief, the fourth section of our statute of 1774, then enacts that “therefore all bastard children shall hereafter be deemed settled in the place of the last legal settlement of the mother,” &c. (Rev. L. 36; Rev. Stat. 878, § 4.) The object of the statute was to prevent the fraudulent removal of the mother before birth of any bastard child. The remedy provided was fixing a settlement for such child at the time of its birth — then fixing that settlement at the place of the last [31] legal settlement of the mother. It seems to me that the words 7asi legal settlement, refer to the settlement of the mother at the time of the birth, and not at the time of the order. But aided by the preamble, I think there can be no doubt as to the true construction. 1 am unable to follow the case in New York. In my judgment, therefore, the settlement of the pauper at Nottingham was not changed by the subsequent change in that of his mother on her marriage with Pidcock. The second question raised in this case is, whether Pidcock, by his purchase and residence in Trenton, (now Ewing,) changed his settlement from Amwell to that township. By the terms of the statute, “ every person who shall become seised of any freehold estate of the value of fifty pounds, in any township, &c. and shall dwell upon said estate in the township, &c. in which such estate doth lie, for one full year, shall thereby obtain a legal settlement in such township &c.” (Rev. L. 35 § 1.) The purchase was made by Pidcock subject to an equitable mortgage and pending suit, and therefore be was chargeable with notice. There is no difficulty as to the seisin; the owner of the equity of redemption, except as regards the mortgagee being considered the owner of the land. The purchase, so far as appears, •was made in good faith, and the consideration paid as expressed in the deed was eight hundred dollars. When sold under the decree of the Court of Chancery, the proceeds of the sale are very far below the amount of the incumbrance. The only question is as to the value of the estate. I think that for the present purpose the consideration expressed may be taken as prima facie evidence of the value, though undoubtedly not conclusive. I do not think that the mere fact of a sale by the Sheriff', for a less sum, although far less than the incumbrance, is conclusive, so as necessarily to overcome the prior presumption. The numberless circumstances that may, and often do affect such sales, make it a very unsatisfactory test. But the question of fact as to the value of the estate, was before the Sessions on the hearing of the appeal, and from the facts stated, supposing the case to turn on this point, I am not prepared to say that they erred. But it has been held in this State, that although a purchaser of land of the value of more than £50, immediately mortgaged [32] it for the whole price, and never actually paid any of the purchase money, yet in the absence of fraud, under this statute he must be considered as seised of a freehold estate of the value of £50. Newark v. Pompton, 2 Pen. 1038. This case would seem to rule the present. The court, then, correctly disregarded the incumbrance in estimating the value of the estate. Much inconvenience in the investigation of liens before two justices, is avoided by this construction, and I am not prepared to overrule it. The cases cited do not meet the case. Rex v. Mattingley, 2 T. R. 12, was decided upon a statute which required the purchase of an estate, whereof the consideration bona fide paid should amount to the sum of £30. A purchase for £39, subject to a mortgage of £32, but £7 only being actually paid, was held not to meet the provisions of the statute. The cases cited from Massachusetts, were ruled on the peculiar phraseology of their statute — “the dear yearly value” — viz: the value over and above incumbrances. I am of the opinion that the order of the Sessions must be affirmed.