
    Case of the Loyal and Greenbrier Companies.
    [May, 1783.]
    Land Companies — Failure to Complete Surveys — What Sufficient Excuse — Case at Bar. — The indian war In 1754, and tlie subsequent acts of the kin if ly government preventing the settlement of the lands lying within the boundaries claimed by the Loyal and (1 reenbrier companies were sufficient excuses for those companies, for not completing their surveys, and obtaining patents for the lands within the periods prescribed by the orders oi council, under which they were claimed.
    Waste Lands — Mode of Taking Up. — Waste lands before the revolution, were taken up, by order of council, In general cases: and by warrant irom the governour for military services.
    Same — Form of Order of Taking Up. — Norm of the orders of council under which lands were taken up.
    Same — Priority of Grant — How Obtained. — An entry in the council books, if followed by an order of council, gave priority of grant.
    By the first section of the act of assembly, for adjusting and settling the titles of claimers to unpatented lands, passed at the May session 1779, it is provided, That surveys of waste lands upon the western waters before the first of January 1778, and upon the eastern waters before the end of that assembly, “upon any order of council, or entry in the '“'council books, and made during: the time in which it should appear,” either from the original, or any subsequent order, entry, or proceedings in the council books, that such order or entry remained in force, the terms of which had been complied with, or the time for performing the same unexpired, should be good and valid. Ch. Rev. 90.
    By the fourth section it is enacted as follows, “And whereas great numbers of people have settled in the country upon the western waters, upon waste and unappropriated lands, for which they have been hitherto prevented from suing' out patents or obtaining legal titles by the king of Great Britian’s proclamations or instructions to his governours, or by the late change of government, and the present war having delayed until now', the opening of a land office, and the establishment of any certain terms for granting lands, and it is just that those settling under such circumstances should have some reasonable allowance for the charge and risk they have incurred, and that the property so acquired should be secured to them: Be it therefore enacted, That all persons who, at any time before the first day of January, in the year one thousand seven hundred and seventy-eight, have really and bona fide settled themselves or their families, or at his, her, or their charge, have settled others upon waste or unappropriated lands on the said western waters, 'x'to which no other person hath any legal right or claim, shall be allowed for every family so settled, four hundred acres of land, or such smaller quantity as the party chooses, to include such settlement. And where any such settler hath had any survey made for him or her, under any order of the former government, since the twenty-sixth day of October in the year one thousand seven hundred and sixty-three, in consideration of such settlement for less than four hundred acres of land, such settler, his or her heirs, may claim and be allowed as much adjoining waste and unappropriated land, as together with the land so surveyed will make tip the quantity of four hundred acres.” Ch. Rev. 91.
    The fifth section provides for the cg.se of villagers; and, afterwards, directs, that “All persons who, since the said first day of January', in the year one thousand seven hundred and seventy-eight, have actually settled on any waste or unappropriated lands on the said western waters, to which no other person hath a just or legal right, or claim, shall be entitled to the preemption of any quantity of land, not exceeding four hundred acres, to include such settlement, at the state price to other purchasers.” Ch. Rev. 92.
    By the seventh section, it is- enacted as follows, “And whereas it hath been represented to the general assembly, that upon lands surveyed, for sundry companies by virtue of orders of council, many people have settled without specific agreement, but yet under the-faith of the terms of sale publicly offered by the -said companies or their agents at the time' of such settlements, who have made valuable improvements thereon: Be it enacted and declared, That all persons so settled upon any unpatented lands, surveyed as before mentioned, except only such lands as before the settlement of the same, were notoriously reserved by the respective companies for their own use, shall have their titles confirmed to them by the members of such companies, or their agents, upon paym.ent of the price at which such lands were offered for sale when they were settled, together with interest thereon from the -time of the respective settlements, provided they ^compromise their claims with the said companies, or lay them before the commissioners for their respective counties, to be appointed by virtue of this act, and have the same tried and determined by them, in manner herein after directed.” Ch. Rev. 92.
    The tenth section directs, 1 ‘that all claims for lands upon surveys under any order of council, or entry in the council books, shall, by the respective claimers, be laid before the court of appeals,” who were to hear and determine them in a summary way, upon such evidence'as, in the opinion of the court, the nature of the case might require. Ch. Rev. 94.
    Under the foregoing acts of assembly, the Loyal and Greenbrier companies presented, in December 1779, petitions to the court for the confirmation of their respective titles to lands claimed by them under certain orders of council.
    That of the Loyal company (written by judge Pendleton, who was a member of the company) set forth, That under the late government, “and according to the forms thereof for granting lands in this .state,” —-an order of the governour and council, of the 12th July 1749, was made; whereby leave was granted to John Lewis, Thomas •Walker, and others, to take up and survey 800,000 acres of land in one, .or more, surveys, beginning on the bounds between this state and North Carolina, and running to the westward, and to the north, so as to include the said quantity; “and they were allowed four years time to survey and pay rights for the same, upon return of the plans to the secretary’s office.”
    That “the grantees being wholly stop’d, in their endeavours to carry the said order into execution, the governour and council, b3r their order of June 14th, 1753, allowed them the further term of four years for completing their surveys of the said land; whereupon the company in order to encourage the speedy settlement of that frontier, appointed Thomas Walker, esq. one of their number, agent, with power and direction to survey any of the said land in small parcels, and sell the same to settlers, at the rate of three pounds per hundred acres, over and above the expense of surveyors’ fees and rights.”
    *“That these terms being published, through the states of America, were so generally agreeable, that, in that year and the beginning of the following, there was surveyed and sold the several parcels in the schedule annexed; and the company would have been able to have completed their whole surveys within the time allowed them, but that, in the said year 1754, a war commenced, in that Country, with the neighbouring Indians, which stop’d their further progress, and drove all or the greater part of the settlers from the lands surveyed and sold them.”
    “That, on the establishment of peace, the company, on the 25th of May, 1763, petitioned the then governour and council for a renewal and confirmation of their said grant, having been hindered, by the war, from performing the condition thereof, but the board were of opinion that they were restrained, by the king’s instructions, from granting such renewal and confirmation,” so that the denial arose, not for want of equity in its foundation, but because the British ministry designing to oppress America and stop the settlement of that, “frontier (too remote to be easily subjugated”) had “instructed their governour not to grant any lands on the waters of the Mississippi; and a royal proclamation had issued prohibiting all persons from settling on any of those lands, and even requiring those, settled under patents, to remove to the interior parts of the country.”
    That, in this situation of things, the company being unable to proceed any further, many people applied to the agent for sales of sundry parts of the land, at the price fixed as aforesaid ; and were promised it, if the company should ever be able to make them titles: Otherwise, those, who settled, were to abide the consequences of their settlement; and, on those terms, great numbers did settle.
    That, in 1773, the governour and council were instructed to grant lands in the back country to the officers and soldiers in the last war, who were entitled thereto under the king’s proclamation in 1763: “whereupon some of the said officers attempting to locate ‘their warrants upon old settlements *made under contracts of this company, and of other grantees of lands on Greenbrier river, the said Thomas,Walker, and brigadier general Andrew Lewis, agent for the Greenbrier company, on behalf of their respective principles represented the matter to the governour and council, who, on the 16th day of December, 1773, made the following order, ‘On consideration of the several petitions of Thomas Walker, in behalf of himself and the other members of the Loyal company; and also of Andrew Lewis, agent for the Greenbrier company, praying that the grants made to the officers and soldiers under his majesty’s proclamation in 1763, may not be suffered to be located so as to interfere with their grants: and also, of the petition of sundry inhabitants settled on those grants to the same purpose; and of the counter petition of Hugh Mercer and sundry other officers, the board were of opinion, and it was accordingly ordered that the officers and soldiers be at liberty to locate their lands wherever they shall desire, so as not to interfere with legal surveys, or actual settlements: That .every officer be allowed a distinct survey for every thousand acres; and that those are to be deemed settlers, who resided on any tract of land before last October, and continued to do so, having cleared some part thereof, whereby their intention to reside is manifested. And that every settler shall have fifty acres, at least; and, also, for every three acres of cleared land, fifty acres more, and so in proportion, which is to be taken as part of the grants of the said companies respectively, when the land office shall be open to them, unless such settlers shall chuse to hold under the officers and soldiers, or any of them, rather than under the said companies.’ ” That this order, proved, “that the governour and council considered the grant, to the Loyal company, as then remaining in force; and that a time would come when the land office (then shut up by the royal instructions) would be open to them for confirmation of the whole; and that, in the mean time, they allowed the actual settlers to shelter themselves under the said grants for protecting their settlements, in case they preferred *that to a bargain with the officers; which claim, under the company, was obviously to be obtained, of them, upon the terms of paying the price of three pounds per hundred acres, originally fixed thereon, and so it was well understood by all persons concerned.”
    That in consequence of the last mentioned order of the governour and council, the agent, for the company, surveyed, in 1774 and 1775, the several parcels of land, and for the persons whose names and their respective quantities were contained in a schedule annexed: “Which surveys the company intended to have returned to the secretary’s office; obtained patents thereupon ; and conveyed the lands, to the respective persons, upon their paying or securing the consideration money, but the flight of the governour, and subsequent change of government prevented them.”
    The petition, therefore, prayed for certificates to entitle them to grants for the surveys; that the quantity for each person might be made up 400 acres; that grants for the whole might issue to the agent of the company, to be by him conveyed to each person, upon payment of the purchase money, with the surveyors’ and office fees, and rights (which the company were ready to pay into the treasury) ; and for general relief.
    The petition for the Greenbrier company set forth, That by an order of the governour and council (made “pursuant to the form of granting lands in this state) bearing date the 29th day of October, 1751,. leave was granted to the said company to take -up one hundred thousand acres of land, lying on Greenbrier river north west and west of the Cowpasture, and Newfoundland, and four years time were allowed them to survey and pay rights for the same, upon return of the plans to the secretary’s office.”
    That, in execution of the said order, the agent for the company in, and prior to, the year 1754, surveyed and sold, in small parcels, to sundry persons, several tracts of land as per list annexed: At which last mention'd period an invasion of the Indians, in that country, put an end to all further ^proceedings; and, during that invasion, the proclamation of the king, on the 16th of December, 1773, prohibiting the settlement, or grant, of any lands, on the western waters, suspended ■the further execution of the said order, until the 16th of December, 1773; when the then governour and council considered the grant to the company as still in force, and allowed any settlers, on the Greenbrier lands, to have surveys made under the said order, for the purpose of securing, to themselves, the lands they had settled on: such settlers paying, to the company, the price at which they had sold their-other lands formerly surveyed.
    That, in consequence of the last mentioned order, the company surveyed lands for sundry actual settlers; but as patents had not issued for the same during the existence of the late government, grants could not now be obtained, for them, without the aid of the court.
    The petition therefore prayed, that certificates might be granted pursuant to the act of assembly aforesaid, enabling the -petitioners’ agent to procure patents for the lands, and to convey the same to the respective purchasers and settlers according to his contracts; and for further relief.
    John Taylor, for the petitioners,
    argued, that the claims were clearly not lost, as sufficient excuses were offered for all the delays, if such they could be called, which had taken place. That the act of God, public .enemies, and restraints of government, were always considered as a justification. All which had occurred; for the hand of time had swept away most of the members of the companies, and those who remained were incapacitated by age and infirmities to pursue their rights with the promptitude of younger years. But the war with the Indians, in the first place, was decisive, for negligence is never imputed -flagrante bello ; which ever excuses delay : And, after that period, the arbitrary acts of government, which could not be resisted, put a stop to any effectual proceedings on the part of the claimants; who, nevertheless, did all they could towards performance, *by conditional arrangements with purchasers and settlers. That the company had, to obviate all difficulties, solicited further time in 1763; and were denied it, not because the governour and council believed it to be wrong, (for they thought it right,) but because the British ministry, in order to weaken the colony, had resolved to stop the settlement of the frontier; and, to that end, had not only instructed the governour not to grant any lands on the waters of the Mississippi; but had issued a royal proclamation prohibiting all persons from settling there, and even requiring those already settled under patents to remove to the interior: thus imagining, vainly indeed, to stifle all efforts to strengthen the country, but still sufficient to prevent the operations of the companies; who ought not to be prejudiced by the tyranny of their rulers, whose authority they could not resist. That thoughts of this kind had, evidently, their effect in the year 1773, when the governour and council restrained the officers and soldiers from locating their warrants so as not to interfere with legal surveys, or actual settlements; and declaring actual settlers, to be such as resided on any tract of land before the next preceding October; to each of whom fifty acres for settlement, and fifty for every three acres cleared, (to be taken as part of the grants to the companies respectively,) were to be allotted, when the land office should be open to them: Which manifestly proves that the governour and council of that period considered the right as still existent, and capable of being rendered effectual at ■ a future day. That with this gleam of hope, the companies proceeded; had further survey's made; and were prepared to carry them into grant, when the flight of the governour arrested their progress, and the subsequent events of the revolution prevented all future exertion. That this was sufficient to entitle the claimants to relief, even upon legal grounds; but much more so in equity, as it was a case which lay in compensation ; for the country would be settled and all public dues discharged in the same manner as if no delay had taken place; and that was all that ever was contemplated by government, or could be justly demanded.
    *That the foregoing view of things brought the case expressly within the meaning of the act of assembly, and entitled the claimants to the lands they solicit: which would be evident from a very slight review of certain parts of the statute. For the 1st section, although applied to specified cases only, clearly shews, that the legislature thought all surveys under orders of council should be carried into grant. And the 4th section provides, that mere settlers should be protected. The 5th gives the same benefits to villagers; and the right of preemption to all settlers. Which proves that paternal hand of government was to be extended to all who had been oppressed by difficulties, over which they had no controul; and that if the general policy of settling the country was maintained, and the public dues satisfied, the lands should, in all instances, be secured to> the fair claimants; for this, in the spirit of the rule upon mortgages, was all that the state could justly demand. But if any doubt could remain, it was completely dissipated by the 7th section; which, in terms, includes the case; ior it recites the agreements between purchasers and companies; and declares that the former should have their titles confirmed, by the companies, upon payment of the original price with interest: which necessarily settles the question, and proves that the orders in council are still in force ; and that the companies have a right to the lands upon substantial fulfilment of the conditions contained in them.
    Randolph, attorney general,
    contended that the claims could not be sustained. That the grants were, originally, upon conditions which had not been complied with, and therefore, that the whole of them were void. That the conditions contained no exceptions; and the excuses offered, if any were admissible, which he doubted, were not sufficient. That there had been time enough, between the dates of the orders of council and the alleged interruptions from the Indian war, to have carried them into effect; and no cause, at all, was shewn, 'why it was not done; and, if the ^claimants had delayed the performance of the acts necessary to the ful-filment of the conditions, they must abide the consequences; for vigilantibus, non dormientibus, leges subveniunt. That the case bore no resemblance to a mortgage; for there the money and interest was all that the lender expected; and if he got that he obtained exact justice, and consequently had no right to complain; but here, the original object, whatever might have been the after thoughts of government, was a speedy settlement of the country; and if that was not attended to, the motive for the grant failed, and government was so far injured. That the impediments subsequent to the Indian war, were to a great degree imagina^: but, be that as it may, the right depended upon performance of the condition; and if that was not effected, the right ceased altogether. That the case was not within any of the provisions of f'e act of assembly; for they all suppose due diligence, and necessary impediments from circumstances which could not be con-trouled; and, out of indulgence for the impossibility of performance, a relief was extended to them by the legislature. But here was no such impossibility ; and if the delay was not voluntary, and for the convenience of the claimants themselves, it was quite unnecessary; and therefore not to be countenanced. That the 7th section was in unison with the rest of the act, and spoke of such companies, and such companies only, as had so fulfilled the conditions of the orders of council, that forms merely were wanting to complete the title: in which case, as circumstances, over which they had no controul, prevented full compliance, if was right that they should have an opportunity of perfecting their titles: of which class was the case of Preston and Patton, in this court: Por, although that was not a company claim, it shewed the principle which should govern in every case, namely, that the applicant must have done all that it was in his power to do. But that was not the situation of the companies before the court; who had been guilty of the grossest negligence, and could not complain, if they were subjected to the consequences of it.
    'x'Taylor, in reply.
    There is a difference, between a condition upon which a right is to accrue; and a condition to defeat a right. The first requires strict performance, or the right never commences: But the latter, in the eye of a court of equity, only requires substantial performance ; and, if compensation can be made, it is all that is requisite. In the present case, that compensation has been already in great part accomplished; and the whole that remains undone, can now be prefected, without the slightest loss to the state; and therefore it is completely within the rule of equity; which is sufficient to entitle them to a grant of their lands.
    
      
      The principal case is cited in Maze v. Hamilton, Wythe 52.
    
    
      
      Where were two modes of taking up waste and unappropriated lands at that time. One was hy obtaining an order of council simply; the form of whicli, in the year 1721, was sometimes as follows to wit, "On the petition of-, leave is granted him to take up-acres of land lying in the county of -.” But this form seems to have afterwards changed to the following, “On the petition of-, leave is granted him to take up-acres of vacant land lying in the county of-; and four years allowed to survey, and pay rights, on return of the plan to the secretary’s office.” A copy of this order was carried to the auditor’s office, who made an entry of it, and certified it on the copy of the order, which was then lodged with the surveyor: hut was seldom, if ever, referred to, by hiin, in the survey. The other mode was for military services; and in order to obtain the stipulated quantities, a warrant was procured from the gov-ernour, by each officer or soldier, directing the surveyor to survey the land for him. This however was often impracticable to the claimant, from distance, poverty and other causes; which, it is said, was the source of great popularity to general Washington; who, after the indian -war, obtained the warrants for all the officers and soldiers of his regiment; and had the surveys made, and transmitted the plans to them, so as to prevent their falling into the hands of speculators, and obtaining little, or nothing, for their rights.
      I have understood, that an entry in the council books, describing the land intended to be taken up, would, if an order of theboard afterwards'followed it, be sufficient to entitle the petitioner to priority of grant: which seems to be sanctioned, by the first section of the act of 1779, Ch. Rev. 90, declaring such entries to be valid.
    
   The judgment of the court was as follows:

“The several claims of Thomas Walker, esquire, on behalf of himself and the other members of the Loyal company; and Thomas Nelson, esquire, on behalf of the Greenbrier company, to grants of all the lands surveyed under several orders o± council, bearing date the 12th of July, 1749, the 29th of October, 1751, the 14th of June, 1753, and the 16th of December, 1773, came on to be heard yesterday and this day; and thereupon, the arguments of the counsel for thq claimants, and of the attorney general for the commonwealth, having been fully heard and considered: It is the opinion of the court, and accordingly decreed and ordered, that all surveys made by a county surveyor, or his deputy, properly qualified according to law, previous to the year 1776, and certified to have been made by virtue of the orders of council to the Loyal and Greenbrier companies, or either of them, ought to be confirmed; and that the register be directed to issue patents upon all such surveys as shall be returned, and so certified.” 
      
      This. U presume, means, that a certificate, whenever given, either before or subseuuent to the date of this judgment, provided the survey was actually made under an order of council, should be deemed sufficient; for, upon inspecting a variety of surveys in the general court, and other places, before the revolution, I do not discover, that tile order of council was, in general cases, referred to in the survey.
     