
    Overseers of the Township of Tewksbury v. Overseers of the Township of Readington.
    1. Though a person purchases and pays for a piece of land and dwells-thereon for more than one year, and afterwards receives a deed for the same, yet unless he reside thereon for the term of one full year after the delivery of such deed, ho does not acquire a legal settlement in the township where such land lies.
    2. A title to land which amounts only to a trust by mere implication, not arising by deed, nor established by any previous decree is not such seizin of a freehold estate as the act (Rev. Laws 35, sec. 1) requires.
    This was a certiorari to the Quarter Sessions of the county of Hunterdon, to bring up to this Court the order of the Sessions, affirming an order of two j ustices to remove Baltus Pickle, Son., a pauper, from the township of Beadington, to the township of Tewksbury, in the county of Hunterdon.
    The facts as they appeared by a state of the case agreed upon by the counsel of the parties, were as follows: The pauper, (Baltus Pickle, Sen.,) agreed with one Christopher Bocker for the purchase of á lot in Tewksbury at the price of fourteen dollars, for which he paid the money down, took possession in 1805, and resided on it till 1809, when he obtained a deed. From this time he continued to reside on the lot until the spring of 1810, when he sold and conveyed it for $170, and removed out of the township., Christopher Booker himself had no deed for the lot at the time he agreed to sell it to the pauper; he had only an article of agreement with Walter Rutherford for a greater tract, of which this was a small corner of less than an acre and a half, and .the conditions which Booker was to perform in order to obtain a deed, do not appear. The pauper dwelt on the lot five or six years before he got from Bocker a deed, and only five'or six months afterward.
    
    Under these circumstances the Sessions adjudged a settlement to the pauper in Tewksbury where the land lay. Against this order of the Sessions, the overseers of the township of Tewksbury sought to be relieved by prosecuting the present certiorari. And they contended by their counsel, Mr. Wall, that to sustain the order of the Sessions to remove the pauper to the township of Tewksbury, it was necessary that the counsel for the township of Readington .should prove three things—1. Seizin in Baltus Pickle, Sen.-, (the pauper) in the township of Tewksbury. 2. That the pauper being so seized, dwelt on the same, or in the township of Tewksbury, for one full year after he became seized. 3. Not only that the seizin and the dwelling were for one year, but they were for the same year.
    The words “ seized of an estate of freehold ” made use of in the statute meant a legal seizin, and there could be no legal seizin under a mere contract to purchase. The term seizin had a known, definite and legal meaning, and was ■exclusively applied to estates of freehold and inheritance. ’ Woy’s Max. 319; 1 Co. Lit. see. 320, page 200, b.; 2 LI. Com. 104, 144; 1 Lurr. 107; Lev. Laws 151, see. 9, 10, 11; 12 John. Rep. 73. That a freehold estate could only be created by deed, or by twenty years adverse possession. 2 Picker. Rep. 536; 14 John. Rep. 199; Rev. Laws 566, see. 4; Lurr. Sett, cases, 272, 540, 656; 1 Ualst. Rep. 177. That Baltus Pickle never having been seized of an estate of ■freehold until November, 1809, and having parted with it in January, 1810, gained no settlement in the township of Tewksbury.
    
      Saxton and Vroom, contra,
    contended that the word seized used in the estate did not mean merely the legal title, but was the same as the word possession. 2 Bl. Com. 199, Law Dic. word seizin; 1 Instit. 153; 4 Cru. 102, ch. 6, sec. 10, pl. 10; 18 Vin. 185; 5 Bin. Rep. 260; 4 John. Rep. 462; 2 Bl. Com. 208; 1 Term Rep. 382, 402; 1 Halst. Rep. 222; 1 Blac. 364; Salk. Rep. 524.
    That the word estate in settlement cases did not mean a legal title; an equitable title was sufficient. 3 T. R. 114, 771; Doug. Rep. 629; Penn. Rep. 1038.
    That the justices were not to investigate the strict legal title because they wore not considered competent. 3 Burn. Just. 495-6; 2 Stra Rep. 608; T. R. 554.
    That wherever the qualification of estate was required an equitable title was sufficient. That the game laws made use of the word seizin, and that in the decisions upon those laws an equitable title was deemed sufficient.
    The Cioee Justice having been concerned in the cause, before lie came upon the bench, gave no opinion.
   The opinion of the Court was delivered by

Ford, J.

Two justices made an order to remove Baltus Pickle, Sen., from the township of Eoadington to the township of Tewksbury, in the county of Hunterdon. The township of Tewksbury appealed to the Sessions where the order was affirmed. The case appeared to be as follows:

The pauper agreed with one Christopher Bocker for the purchase of a lot in Tewksbury, at the price of $14; for which he paid the money down; took possession in 1805, and resided on it till 1809, when he obtained a deed. From this time he continued to reside on the lot till the spring of 1810, when he sold and conveyed it for $170, and removed out of the township. Christopher Bocker himself had no deed for the lot at the time he agreed to sell it to the pauper; he had only an article of agreement with Walter Rutherfurd for a greater tract, of which this was a small corner of less than an acre and a half, and the' conditions which Bocker was to perform do not appear. The pauper dwelt on the lot five or six years before he got from Bocker a deed, and only five or six mouths afterward. Under these circumstances the Sessions adjudged a settlement to the pauper in Tewksbury where the land lay.

The statute provides, Rev. Raws, 35, see. 1, that every person who shall become seized of any freehold estate, of the value of £50, in any township, and shall dwell upon the said estate, or in the township in which sueh estate doth lie, for one full year, shall thereby obtain a legal settlement in such township. The requirements of -this section must all be fulfilled in order to gain a settlement.

The estate must amount to the value of £50, and without, doubt this requisite was fulfilled; for although it.cost the pauper less than that sum, it became so much more valuable by his improvements as to sell for $170.

The dwelling is required to be upon the said estate, meaning a freehold estate, for oiie full year; therefore dwelling ever so long on an estate not freehold does not fulfill the requirement; neither does dwelling on a freehold any less time than one full year fulfill it; they must both concur. If the pauper had no freehold before he got a deed, his time before cannot add itself to his time after to make up the year ; nor can it enter at all into the computation. Otherwise, dwelling on another person s freehold for a year would give a settlement, provided a man should purchase the estate at the end of the year, and dwell upon it a day Or a week before he sold it; in which case he would be a dweller on his own estate of freehold only a day or a week, instead ■of tlie full year required by the statute. Therefore the main question presenting itself is this—was the pauper ■seized of a freehold estate before he got a deed.

Now it is too evident to be denied, that the legal estate remained in Rutherford or Bocker till the time of their conveyance, and therefore could not bo vested in the pauper. But it is said, first, that the pauper had an equitable title from the time he paid for the land and took possession; and, secondly, that an equitable title will give a good settlement under the act.

A court of law finds great difficulty in exercising equity powers for want of those facilities which the court of equity possesses for bringing before it all parties interested in the .matter, and refusing to decree till they are heard. It is ■said that Bocker held this title under what a court of equity would denominate an implied trust for the pauper ; and on a bill for specific performance it would have decreed Bocker to give him a deed at any time after he had received the money for the land. But the pauper had nothing to shew for the sale of the lot but a parol contract which is void by the statute of frauds. If, however, the answer had admitted the contract, and such part of performance as relieved the case from this objection, it might have raised a more formidable difficulty, by answering, that Bocker himself had no title at the time of the contract, and part of his agreement was not to give a title till he got one from Mr. .Rutherfurd ; in the meantime that the enjoyment of the land should go against the use of the money. Would the Chancellor have ■decreed Bocker to make the pauper a deed for Mr. Rutherfurd’s land ? Mr. Rutherfurd must have been heard on this point. If Bocker had not fulfilled the conditions on which he was to have a deed from Rutherfurd, the estate must have been left in Rutherfurd, unless the pauper had fulfilled in Bocker’s place in order to complete his,equitable title; but whether the pauper would or would not have paid Rutherfurd for the whole farm, in order to complete his equitable title to this little corner of it, not amounting to an acre and a half, might have been a serious question; yet without such performance a court of equity might not have decreed to him the legal estate. Therefore it is by no means-clear that the pauper had such an equitable title as would have been established in a court of equity against Walter Rutherford.

But secondly.—It is argued that an equitable title will gain a settlement under the act. Now the letter of the act certainly imports a legal estate; the words are, seized of a freehold estate. The word seized will scarcely apply to an eqitable title, which is merely a right to have a title, and not the title itself. The word estate also stands clearly distinguishable from an equity; for estate and equity are not synonimous words either in meaning or substance. And how estates of freehold not arising from the operation of law can be created by the act of parties without deed since the statute of frauds, it is hard to conceive. Therefore the letter of the act beyond all doubt imports to my mind a legal estate; and if an equitable one be sufficient it must be so, not according to the letter, but by putting on it a construction according to the supposed spirit and intent of the law. Now some case or decision ought to be shown wherein such equitable estate has been holden sufficient by construction. But no case is produced, nor is it even surmised that such an adjudication has ever been made. I am certainly not aware of any myself. If a man marries a dowager he is-seized of a freehold estate in right of his wife. A mortgagor retains his legal estate against all persons but the mortgagee, for a court of lav; considers a mortgage at this day as only a security for the money and when it is satisfied the mortgagor needs no reconvejmnce.

The English adjudications cited or referred to at the bar have no reference to the construction of our statute or any other statute... They stand on totally different principles. ■Parker,,. 0, J., and other judges after him, decided that a man could not be removed from his own estate whether it was legal or equitable, and that to be unrejnoveable for 40 days gave a settlement in England. This introduced equitable titles into their settlement laws. It was not a construction on our statute nor even upon the English statute. It was a settlement unknown to both; and instead of being wisely done, it introduced so many fraudulent and inconvenient consequences that the legislative power afterward had to enact that it should be a good settlement only to the party himself so long as he hold the estate, but no longer, and should afford no derivative settlement to his children. These decisions have therefore no bearing on the construction of our statute, nor do they afford us the least analogy.

Whenever the case of a cestui quo trust shall present itself to the court, upon express trusts created in a deed or settlement, affording no uncertainty, where the trustees are a mere machinery for the express purpose of protecting him in possession and enjoyment, it will be time enough for the court to give an opinion upon it. But a trust by mere implication, not arising by deed, nor established by any previous decree, is not such seizin of a freehold estate as the act requires; and therefore in my opinion the order of justices and sessions in this case ought to be reversed and set aside.  