
    Lessee of John Wilkins jr. against John Allenton.
    The state only can take advantage of defaults of actual settlement, under the law of 3d April 1792.
    Proofs of actual settlement must be subsequent to that law.
    EjectmeNT for one messuage and 400 acres of land, on French creek.
    The plaintiff claimed under a warrant to John Wilkins, jr. for 400 acres of land, north and west of the rivers Ohio and Allegheny, on French creek, adjoining a survey made for Baum, and including the claim formerly of John Wentworth, agreeably to the acts of assembly of 3d April 1792, and of the, 9th March 1796, dated 18th March 1796, reciting that he was desirous to settle and improve the said 490 acres. A survey of 373 acres and 102 perches, was made by John Power, on the 20th September 1797, it being the same tract which was surveyed to John Wentworth, on the 27th March 1794, on his improvement, dated 3d April 1792. A patent issued thereon, dated 17th July 1801, to Wilkins, which was admitted by the defendant’s counsel to be read, though the demise was laid on the 1st February 1798, and the ejectment brought to June term 1800.
    The defendant’s counsel moved for a nonsuit. The terms of actual settlement prescribed by the 9th section of the act of 3d April 1792, are not shewn by the plaintiff to have been complied with. 3 St. Laws 212. The patent since the ejectment brought, cannot dispense with the conditions originally imposed, nor have any effect. It was founded on mistake and misapprehension of the law, and is therefore void. 2 Bla. Com. 348. It was decided by the justices of this court here in October 1800, between Meade’s lessee and Haymaker et al. that the conditions of actual settlement and residence are equally obligatory under *27ul warrants obtained by Meade, as under others. 741 Though the plaintiff claims under a credit given to David Meade, by the act of 9th March 1796, 4 St. Laws 16; yet that law only removed the impediment as to his warrants, created by the acts of 22d April (3 St. Laws 581) and 22d September, (3 St. Laws 636) and operated as a virtual repeal of those acts, as to the necessity of previous improvements to such warrants. On the 14th March 1796, the Board of Property estimated the lands of Meade at 1392I., and by the act of the 9th of the same month, he obtained a credit for the same in the books of the receiver general, which might be transferred to any person, and passed as credit, either in taking out new warrants in any part of the state, where vacant land might be found, or paying arrearages of former grants. The law passed the house of representatives, obliging him to pay 30I. per hundred acres, according to the provisions of the 6th section of the act of 21st December 1784, for such new warrants as he should obtain, but it received considerable amendments in the senate on the 27th February and 5th March 1796, and was finally modified and enacted, as we find it in our statute book. It will not be pretended, that if he had received his money, he could have further claims against the state; and the legislature could not mean, that the sum passed to his credit, should be more valuable than the same sum in cash, in the hands of other persons; or that Meade and those claiming under him, should experience the benefit of the diminution of price in the lands, and not be subjected to the terms of actual settlement, equally with other citizens. The rate of lands across the rivers Ohio and Allegheny was lessened, to enable the holders of them to make efficient settlements ; and this was the great object contemplated in the law of 3d April 1792. It was calculated as a complete system of settlement, which would of itself be carried into execution. The words of the 9th section are, “ in defect of such actual settlement and residence, it “ shall and may be lawful to and for this commonwealth to is- “ sue new warrants to other actual settlers for the said lands,” &c. ; and of the 10th section, that on the actual settler making default, the commonwealth may grant the same lands or any part thereof to others by warrants. The variation of phraseology as to the two other classes of landholders, was certainly intentional. Other actual settlers, mean persons really on the lands, and the expressions can convey no other idea. The entry of such settlers therefore on such lands, whereon default has been made, is congeahle. The will of the community is supreme, and has so directed it. Warrant holders cannot pretend that they have more equity than actual settlers. If the latter aban*don their settlements, their farms are open to new ap- p plications. Why should it not be so also in the cases of *- ■ the former ? A base or qualified fee must be determined, whenever the qualification annexed to it is at an end. 2 Bl. Com. 109. There is a distinction between a condition in deed and a limitation. When the estate is so expressly confined by the words of its creation, that it cannot endure for any longer time than till the contingency happens, upon which the estate is to fail, this is a limitation; and the estate may be defeated thereby without any entry or claim to avoid it. Ib. 155. The estate here is at the utmost a chattel interest, which terminated on the default of the warrantee. Ib. 156. The warrant is dated in March 1796, and no settlement has been shewn under it before the ejectment was brought to June term 1800, more than four years, though it should have been made in two years. On a condition precedent, the party has no estate until the condition be performed, even if the condition has become impossible. Ib. 157. 2 Dali. 317. Co. Lit. 206, b. On a limitation, the estate determines ipso facto, without entry. Co. Lit. 214, b.
    Moreover, the argument ab inconvenienti applies forcibly in the'present instance. Unless actual settlers are encouraged to seat themselves on the lands of defaulting warrantees, the intentions of the legislature as to forming settlements by way of barriers to the frontiers will be defeated.
    The plaintiff’s counsel observed, that they had it in their power to prove a settlement under the law, but deemed it to be unnecessary. The plaintiff was entitled to a transferred credit under David Meade. It was resolved in his ejectment against Haymaker et al. that he might take out a warrant without any previous improvement, a term binding on other citizens. Was he not then confessedly in a better plight than others with their cash in hand? The act of 28th March 1787, (Loose Laws 270) grants an equivalent to the Pennsylvania claimants, for their claims either in the old or new purchase, at their option; and warrants and patents, and all other acts of the public offices were to be performed free of expense. In these particulars also, they were put in a better situation than others applying for lands. We know nothing of the original bill in the lower house, or of the amendments thereto in the senate, which have been mentioned, and which afterwards were enacted into a law on the 9th March 1796. The court have not the journals of either house before them, whereon they can judge; but this we do know in the language of the same act, that the Pennsylvania claimants “had performed on their part all the requisites neces- “ sary *to their obtaining the benefits of the said law ; and ' J “it was just that the persons complying with the terms of “ the law while it was in existence, should be entitled to the “benefits of the same.” The legislature had made a solemn engagement with the persons who had thus surrendered their pretensions for the public peace ; and the community were bound by their acts, as moral agents. We likewise find, that grants were made to the Washington and Pittsburgh academies, exempted from settlement. Why should not Meade, and those claiming under him, have the same indulgence ?
    The sentiments of the court on the subject of settlement on Meade’s rights were delivered obiter, in the case of Haymaker. The point was not argued, nor was the question directly before the court, and is therefore open to discussion. If the two laws of 1794 had not passed, Meade might have obtained vacant lands any where within the state. What we insist on is, that the law of 9th March 1796, was meant as an honest fulfilment of the public plighted faith by the act of 28th March 1787, unfettered by terms of settlement or any other conditions whatever, unknown at that time.
    But it has been said moreover, that the warrantee never had more than a chattel interest, and right of interest in these lands, though he has paid the full consideration to the state. And it is assumed as a ground of argument, that the estate, such as it was, determined ipso facto by its limitation. This is denied, not only on the express words of the law, which prescribes a certain mode of issuing new warrants vacating the original warrants, but on the authority of the decision of this court in Morris’s lessee v. Neighman and Shriner, in May 1799. The warrantee, by payment of his money, and receiving possession of the land, obtains an estate on certain conditions; and to take advantage of a condition broken, there must be an actual entry. Co. Lit. 218, a. 2 Bl. Com. 155. A stranger cannot enter, but only the grantor or his heirs. Co. Lit. 214, a.
    It has also been objected, that there is a difference of expression in the 9th and 10th sections of the act of 3d April 1792, as to vacating the interests of warrantees and actual settlers. It will be clearly found, that the former section equally respects both, where defaults have been made as to settlements ; and that the latter section is merely confined to the instances, of actual settlers not taking out their warrants within ten years after pass ing of the act. Admit an entire equality of equity between the two classes of landholders, though the warrantees have paid their money into the coffers of the state, why in the reason and nature of things, should entries on the land without authority *be allowed in the case of the warrantees, and not as to r* „„ the settlers ? *The advocates of the pretensions of the ^ '' latter, will not contend, that in default of the full complete settlement and residence pointed out by the law, one actual settler may dispossess another of his farm, on the pretence of the interest of the latter being determined by its limitation, and that the entry of the latter is congeable. Such a doctrine would produce infinite disorder and confusion. If inconveniences are to be regarded in the exposition of the law, it will certainly be necessary to adopt the rule, that some public authority should determine between the contending parties ; that they should not be permitted to judge and decide on their individual claims, and carve out their several remedies at their will and pleasure. No one can doubt that the peace and welfare of the community are intimately interested herein.
   By the Court.

We expressed our opinions incidentally in Meade’s lessee v. Haymaker et al. that actual settlements were requisite in the case of warrants issued under the act of 9th March 1796. The present question was not immediately before the court, but the case naturally led to it. We mean not however, now to give any decided opinion on that point, as we are not possessed of the minutes of the house of representatives or of the senate, which have been referred to in the argument.

Admitting that the conditions of actual settlement are obligatory on the warrants issued, under that act, to David Meade and others claiming a credit under him, it is contended, that by the words of the 9th section of the act of 3d April 1792, in default of settlement and residence the commonwealth may issue new warrants to other actual settlers for the said lands, &c. and that these expressions imply a right to settle on such lands whereon default has been made, previous. to such new warrants being issued. But will not the intention of the legislature be better fulfilled, and all the words of the clause receive their full operation, by construing actual settlers to mean other persons, who are desirous to settle and improve the lands ? If they must of necessity be construed to mean persons then- cultivating the land, then none but such characters would be entitled to vacating warrants, in exclusion of the rest of mankind, however desirous and ready to make settlements. Besides if we regard the grammatical construction, and adopt the sense insisted on by the defendant’s counsel, then those words must be taken as referring to such actual residence and settlement, mentioned two lines before, comprehending fencing, clearing, cultivating, &c. erecting the messuage, &c., and residing thereon five years. Neither of these Constructions, it is presumed, will be contended *[278 for, The first opposes every ground of that just equality, which ought to prevail amongst the citizens of a free government ; the last is felo de se of the object endeavoured to be accomplished, and is moreover repugnant to the subsequent words, and so as often as defaults shall be made, for the time and in the manner aforesaid, &c., whijCh presupposes defaults on new grants. The framers of thedaw wisely extended, in order to guard against confusion, disorders and uncertainty, that the constituted public authorities of. the state, by the medium of the land office, should determine respecting the defaults alledged to have been committed by the first warrantees. The opinion delivered by the court in Morris’s lessee v. Neighman and Shriner was consonant thereto, and was delivered in direct terms, that no individuals could take advantage of the breach of the condition, unless through the instrumentality of the commonwealth’s officers, by granting new warrants in a specified form. This was likewise recognized by the majority of the judges, in the late contested case of the mandamus, between the Holland Land Company and Tench Cox, the secretary of the land office. We see no reason at present, to recede from the opinion which we have deliberately formed, but are still open to conviction. We feel and know, that this point requires to be finally settled, and that the peace and safety of the country are involved in an early and mature decision. We therefore invite the defendant’s counsel to take a bill of exceptions, move for a new trial, or to consider the question as a point reserved for further discussion. In the mean while, the motion for a nonsuit is denied.

The defendant’s counsel then offered to shew in evidence, that William Gregg and John Gregg, two brothers, seated themselves down on French Creek, in this quarter of the country in the year 1789. They continued there that summer, and each designated for himself a tract of land, supposed to contain 400 acres; William’s claim was up French Creek, and John’s below it. A small cabin was built on William’s tract wherein they resided. They then returned' into the inhabited parts of the country and came back in the spring of 1790, built a large house on John’s tract, and raised 100 bushels of corn and 500 bushels of potatoes on the lands that summer; John Gregg returned to Susquehannah that fall, but his brother William continued to reside in the larger cabin that fall and the ensuing winter, and was killed by the Indians, on the lands, in the spring of 1791. The defendant afterwards intermarried with the widow of William Gregg, and holds the lands in controversy, in her right, * 1 *and under William M. Adams, the guardian of his minor '9-i children.

This evidence was opposed by the plaintiff’s counsel, on the ground of its not proving a settlement recognized by the law. By section 6, of the law of 12 March 1784, no improvement, office right or claim, under any Indian nation, or the late proprietaries, within the lands appropriated for the redemption of the depreciation certificates, or donations to the officers and soldiers in the continental army, shall be valid, but the same shall be null and void to all intents and purposes whatsoever. 2 Dali, sta. Laws 90. By the 2d section of the act of 1st April 1784, the land office, which was shut in 1776, was first opened from the 1st July 1784, for obtaining new rights to lands already purchased from the Indians ; and the 8th section excepts the depreciation and donation lands. Ib. 201. The same exception is again made by the act of 21st December 1784, § 6, lb. 234. The law of 3d April 1792, first gave a right of settlement to these lands. The words of the 2d section are, the lands north and west of the rivers Ohio and Allegheny and Conewango creek, are hereby offered for sale to persons who will cultivate, improve and settle the same. And the 5th section which directs, that the deputy surveyor shall not-survey the lands on warrants, that may have been actually settled and improved prior to the date of the entry of such warrant with the deputy surveyor of the district, except for the owner of such settlement and improvement, can only mean lands settled and improved after passing of the law.

Referred to in i Watts 82; 5 Watts 431.

Messrs. Ross, Woods and Sample, pro quer.

Messrs. Collins, Foster, Baldwin and Ayres, pro def.

By the Court. The present case interests our feelings, but we must endeavour to find out the true meaning of the law and adhere to it firmly. The grammatical construction of the act is clear, and puts all the people of the country on an equal footing. The words of the act are in the future sense ; and the preamble offering encouragement to actual settlers, must naturally refer to those who shall settle, and not to those who had theretofore settled. We are bound by the expressions, and our uniform decisions have been, that proofs of settlement under this law should be confined to settlements made after it was passed. But if the defendant’s counsel are dissatisfied with this opinion, we again invite them to put it in a train, to go before another tribunal.

It was then agreed, that a verdict should pass for the plaintiff; on the pronouncing whereof, general Wilkins generously agreed *to convey one moiety of the lands in question to the minor children of the aforesaid William Gregg. [*280  