
    Dailey and others against Avery.
    In ERROR.
    Thursday, June 18.
    WRIT of error to the Court of Common Pleas of Luzerne C0Unty*
    Between Connecticut claimants of lands within j 4th April, 1799, and its supplements, the certificate sioners is con-title.
    
      Cyrus Avery, the plaintiff below,'claimed title to the for which this ejectment was brought under Zebulon Marcey, ■who, on an application for 300 acres, obtained a certificate for ’ r , • • , „ . „ 337 acres from the commissioners appointed to carry into effect the act of assembly, entitled, ‘‘ An act for offering compensation to the Pennsylvania claimants of certain lands within the seventeen townships of Luzerne,” &c. passed on the 4th April, 1799, and its. supplements, passed the 15th March, 1800, and 6th April, 1803. The certificate bore, date the 21st January, 1804, and a patent issued on it to ' Marcey, on the 17th November, 1812. By deed bearing date December 10, 1812, Zebulon Marcéy and wife conveyed to Cyrus Avery.
    
    The plaintiff having made out his title, the defendants offered to prove, that neither Zebulon Marcey nor any person under whom he derived title had ever been settled on the land in dispute, and that there was no settlement or occupancy of the said land prior to the decree of Trenton. They offered to prove also, that their father, David Dailey, settled upon this land upwards of thirty years ago; that he and his family had actually resided on it ever since, and that no person, except the said David Dailey and his children, (the defendants,) had ever occupied or improved the said land. They further offered to give evidence of the value of the improvements made by their father and themselves. To all this evidence the plaintiff objected, and in order to shew that it ought not to be received, he proved, that the said David Dailey had entered an application for this land in the land office of Pennsylvania on the 19th Dec. 1800, claiming it as a Connecticut settler, and engaging to submit to and abide by the determination of the commissioners respecting the same. The Court of Common Pleas rejected the evidence, and the defendants excepted to their opinion. An exception was also taken to the opinion of the Court in their charge to the jury. They were requested by the defendant’s counsel to instruct the jury, that as the application was only for 300 acres, the plaintiff could recover no more, though the certificate issued for 337 acres. The Court gave it, however, as their opinion, that the certificate having issued for 337 acres, and the Commonwealth having confirmed the same by patent, the plaintiff, if he otherwise made out his case, was entitled to recover the whole quantity.
    
      Hall and Watts, for the plaintiffs in error.
    By the act of 4th April, 1799, sect. 5, the jurisdiction of the commissioners is confined to cases of “ rights or lots within the seventeen townships, which were occupied or acquired by Connecticut claimants who were actually settlers there at or before the decree of TrentonP It is necessary therefore to ascertain precisely what is meant by the term “ actually set-tiers,” which may be. done by reference to several acts of assembly, in which similar terms are used and defined. The act of 16th September, 1785,
      
       contemplates as an actual set-tier one who resides on the land and cultivates it. ' In the act of 30th September, 1786, a settlement is defined to be an actual, personal, resident 'settlement, with a manifest intention of making it a place of abode, and the means of supporting a family. The act of 3d April, 1792, contemplates settlements of the same character. The act of 22d September, 1794, speaks of personal residence and the raising of grain. The act of 3d April, 1804, keeps in view the same description.pf settlers. So the acts of 27th January, 1806,
      
       and of 1st March, 1811. It was only in relation to settlers of this description, who had been personally resident on the land and cultivated it, that the commissioners had power to decide; and the evidence offered by the defendants below tended to shew, that the persons under whom the plaintiff claimed did not come within the meaning of the law. The proceedings of the commissioners exhibit the evidence which was produced before them, and these shew, that there was no proof of the persons from w.hom the plaintiff derives title, having ever been settlers on this land prior to the decree of Trenton. He, therefore, could have no right to a patent. The whole of the investigation on Marcey1 s application seems to have been ex parte;' it does not appear, that Dailey was before the commissioners or had notice of their proceedings. To make their certificate, therefore, conclusive on one who never had an opportunity of being heard, is manifestly unjust and unlawful. The law evidently did not intend, that the decision of the commissioners should be final; for it requires them to keep a regular account of their proceedings in a book to be deposited with the secretary' of the land office, for which there would have been no occasion, if it was intended they •should not be examined. This Court has decided, that the certificate is not conclusive on a Pennsylvania claimant, nor is there any reason why it should be on a Connecticut claimant. It might be obtained by perjury or forgery, and if such things cannot be shewn before a Court and jury, the door 'is ■closed against the admission of truth and justice.' The de"fendants in the present instance had acquired an equitable title; had made valuable improvements, and had no notice of the plaintiff’s claim. They ought, therefore, upon every-principle of equity ha.ve been.permitted to shew these facts. Besides the certificate is not conformable to the act of 4th April, 4799, which speaks of Connecticut claimants who were actually settlers on the lots, and not actual settlers, as the certificate expresses it. If, however, the defendant’s title is not valid under Connecticut, their father may be considered as a settler under Pennsylvania, and the evidence was admissible to shew a settlement under Pennsylvania.
    
    Huston, for the defendant in error.
    The question now under discussion involves the peace and quiet of a great number of persons, whose titles ought not to be disturbed, unless the law imperatively requires it. All our acts of assembly relating to this subject, refer to Connecticut titles according to the rules and regulations of the Susquehannah Company, and of course the words “ actually settlers,” must be interpreted not agreeably to the meaning affixed to them in our acts of assembly, but agreeably to that which belongs to them in the system established by that company. These rules and regulations were different in different townships. Some townships were considered settled, when not more than fifty, thirtyr, or even twenty persons were in them; while in others, every lot was required to be actually settled. In some instances, a man had his lot composed of three different tracts. He might reside on one, cut his wood in a second, and his hay in a third, and the whole was considered as constituting one actual settlement. This was explained to the legislature at the time of passing these laws. The act of 4th April, 1799, sect. 1. provides, that the lines of the tracts submitted, shall be the same as those bounding the original tracts ; which shews, that the rules of the company with regard to settlements were to govern. And indeed the condition of settlement required by the former laws was altogether dispensed with by the act of 9th April, 1807.
    The 11th section of the act of 1799, invests the commissioners with judicial powers, but gives to either party, in Case of dispute between Connecticut claimants, an election -to have the controversy decided by the commissioners or tó appeal, before their decision, to the Court of Common Pleas. Their judicial powers did not extend to Pennsylvania claimants; it was confined to those who had submitted to their jurisdiction ; and the word submitted is restricted throughout the act'to claimants under Connecticut. Dailey did submit his pretensions to the commissioners; and although before their decision he might have carried the matter to the Court of Common Pleas, he could not remove it afterwards. He does not attempt to shew title in himself, but merely offers parol evidence to invalidate the certificate of the commissioners by shewing, that Marcey, and those under whom he claimed, did not come within the description of actual settlers before the decree of Trenton. Between Connecticut claimants the certificate ought to be conclusive, or disputes will be endless; and what proves that the law contemplated no further controversy is, that the party who obtained the patent was required to surrender all his evidences of title, and rely on the certificate, and patent alone. The certificate of the Virginia commissioners has been decided to be conclusive between Virginia claimants; and in New York the law appointing commissioners to settle disputes in the county of Onondago has been held to be constitutional, and their award conclusive, unless a dissent from it be entered within two years from its date. Jackson v. Griszv-old.
      
       Jackson v. MiKee.
      
       Jackson v. Swartwout.
      Jackson v. Ransom. 
      
       These _ cases shew, that the Court carried the law into strict effect, by supporting the proceedings of the commissioners, and they are much stronger than the present case, because the commissioners acted without sub- - mission.
    
      
      
         3 Sin. L. 362.
      
    
    
      
       2 Sm. L. 342.
    
    
      
      2 Sm. L. 395.
    
    
      
       3 Sm. L. 71.
      
    
    
      
       3 Sm. L. 193.
    
    
      
       4 Sm. L. 199.
    
    
      
      
         4 Sm. L. 268.
    
    
      
       5 Sm. L. 199.
    
    
      
      
         5 Johns: Rep. 139.
    
    
      
       8 Johns. Rep. 429»
    
    
      
       8 Johns; Rep. 490,
    
    
      
      • -Í0 Johns. Rep. 407,
    
   The opinion of the Court was delivered by

Tilghman C. J.

Both plaintiff and defendant claimed as Connecticut settlers ; and .the question is, whether, between them, the certificate of the commissioners is conclusive evidence of title. In construing the acts of assembly under which the commissioners acted, the Court will take notice of certain matters of public notoriety, which led to the making of these acts. In the latter end of the year 1768, or béginning of 1769, a number of persons from Connecticut entered into the state of Pennsylvania, claiming, by virtue of a deed from the Indians, certain lands, which, as they alleged, were within the boundaries of the state of Connecticut. The government of Pennsylvania endeavoured to expel them, and was resisted with force ; riots and bloodshed ensued, and the ground was contested, until, at the request of the continental congress, both parties agreed to remain at peace, until the war with England should be terminated. During that war, the Connecticut settlers fought bravely, and suffered great loss, from the common enemy. At length Pennsylvania and Connecticut submitted their rights to the decision of a court of commissioners appointed by Congress, according to the articles of confederation, and in the month of December, 1782, that Court, sitting at Trenton in New Jersey, made a decree in favour of Pennsylvania. From that time, to the year 1799, the legislature of Pennsylvania, fluctuating between a sense of justice, which impelled them to return the possession of the disputed lands to their own citizens, and a sentiment of generosity and compassion, which induced them to shew some favour to men who had, perhaps ignorantly, intruded into a country, where they had spent their labour and shed their blood in the common cause, acted a wavering-unsteady part. At one time, they were too severe; at another, perhaps too lenient. Meanwhile, the Connecticut settlers kept the possession. But conscious of the weakness of their title, they were afraid to make valuable improvements. In this situation, the county was of little value to either party, and both were weary of a contest, to which they could perceive no end. This state of mind was favourable to an accommodation, and the legislature wisely took advantage of it. The act of 4th April, 1799, was passed ; the plan of which was, to offer a reasonable compensation in money, to such Pennsylvania claimants as were willing to release their rights; in order that the Commonwealth having thus regained the title, might confirm the estates of the Connecticut settlers at a moderate price. For this purpose commissioners were to be appointed, whose duty it would be to value the lands; and as it would sometimes happen, that there would be disputes between the Connecticut settlers, the commissioners were to decide between them, according to their oxun customs, in a summary way; provided, that if either party chose, rather to have his cause decided in the Court of Common Pleas, he might elect to have it so done. It is evident, that the object of this law was, to restore peace to the country as speedily as possible; and it should be construed liberally, with that view. The Connecticut titles were sui generis, to be traced in the books of the Susquehannah Company; not calculated to stand the tests of a strict common law investigation, and therefore very proper to be decided by commissioners. It was doing them a favour, to afford them that mode of decision, and no appeal being provided for by the law, it must be concluded, that the judgment of the commissioners was intended to be final. But, it is contended, that in the case before us, the commissioners had no jurisdiction, because the land was not occupied by a Connecticut settler, prior to the decree of Trenton. The words of the law, (act 4th April, 1799, sect. 5.) are these :—“ It shall be the duty of the said commissioners also, to ascertain all the rights or lots within the said seventeen townships, which were occupied or acquiredj by Connecticut claimants who were actually settlers there, at or before the time of the decree at Trenton, and which rights or lots were particularly assigned to the said settlers, prior to the said decree, agreeably to the regulations then in force among them.” Now, in the case before us, the commissioners decided, that the land was occupied and acquired by a Connecticut claimant, an actual settler there before the decree of Trenton, and was particularly assigned to such actual settler prior to the said decree, agreeably to the regulations then in force among such settlers. This decision is in the very words of the act of assembly, except, that the act has the words, who were actually settlers there, and the expressions .of the commissioners an actual settler there. This variation is of no importance, because a man cannot be an actual settler, without being actually a settler. According to the decision of the commissiQners then they had jurisdiction; and the defendants who claim under David Dailey are estopped from controverting it," because when he entered his claim as a Connecticut settler, he asserted, by implication, that the land was occupied or acquired by a Connecticut claimant, who was an actual settler at or before the time of the decree of Trenton. Let it be observed, that I give no opinion, (for the case does not require it,) whether it was necessary, that there should have been an actual settler on this very tract of land, át or before the decree of Trenton, or whether it would not have been sufficient, if the land had been owned by one who was an actual settler within the seventeen townships. I say the case does not require this point to be now decided, because, be the construction what it may, the commissioners have made their decision in the words of the law, and the defendants are estopped from denying their jurisdiction. Taking the jurisdiction then for granted, I have already given some reasons for thinking, that the decision should be conclusive. Their power to decide is to be found in the 11th section of the act of 4th April., 1799. It is there enacted, “ that in case of dispute between the Connecticut claimants, they may elect to have the same decided by the said commissioners, or appeal, before such decision, to the Court of Common Pleas of the proper county, and a certificate from the clerk of such commissioners, or from the prothonotary of such Court of Common Pleas, before which tribunal such decision may be had, certifying in whose favour the same is adjudged, shall be good evidence to obtain a patent from the proper office aforesaid.” No mention is made of an appeal from the commissioners in any part of the law, nor of any tribunal .in which the cause can be re-heard or brought again into question. The act of 4th April, 1799, and its supplements, form one system of legislation on the same subject. In the supplement óf 6th April, 1802, there is a provision which operates powerfully in favour of the conclusive nature of a decision of the commissioners. By the 10th section of that supplement, it is made the duty of the commissioners to demand and “ receive of and from each Connecticut settler and claimant applying for a certificate tinder the act of 4th April, 1799, or the said supplement, any deed and document of title under the Susquehanna Company relating to the lands required to be certified, which may be in the power or possession of such Connecticut claimant or settler, previous to the issuing of any certificate for such lands, which deeds and documents shall be transmitted by the said commissioners to the secretary of the land office, together with all other papers relating to the said commission, when required by the Governor.” It cannot be supposed, that it was intended to disarm a man of his title papers, before the suit was finally decided. In case of a dispute between a Connecticut and a Pennsylvania claimant, the commissioners were not authorised to decide ; but in such case, the possession of the papers proving the Connecticut title, would be of little use. A case a good deal analogous to the present, existed in that part of the state which borders on Virginia, When Pennsylvania and Virginia entered into a compact for the settlement of their boundaries, it was agreed, that the first grant made by either state, within the disputed territory, should be confirmed. Virginia appointed commissioners to settle disputes between her own people • and it has been repeatedly decided by our Courts, that in disputes between Virginians, the certificate of the Virginia commissioners was conclusive; but between a Virginian and a Pennsylvanian, it was only prima facie evidence. The same principle may be applied to the seventeen townships in Luzerne county. For the decisions of the Judges of the Supreme Court on the Virginia cases, I refer to Smith's lessee v. Browne, and Hyde's lessee v. Torrence, 2 Sm. L. 131, 132, notes.

But it has been urged on the part of the defendants, that the evidence offered by them was proper, to shew that David Dailey acquired title as a settler under Pennsylvania. But here again the defendants are estopped. They shall not deny the declaration of their father, that he claimed as a •Connecticut settler, and so claiming, he could acquire no title under Pennsylvania. It would be monstrous, if one could acquire title under the state, at the very moment in which he was violating her laws, and by the very act which was in direct violation of them. Neither plaintiff nor defendants have a vestige of legal title before the act of 4th April, 1799, because, before that period their possession was considered as tortious. Neither has any title, but from the bounty of the Commonwealth, and the legislature had a right to dispense that bounty on their own terms. This is an additional reason, why neither has just cause of complaint, if, for the sake of restoring quiet to the country it was thought proper to oblige them to have their disputes settled speedily, and without appt-al. On full consideration, I am of opinion, that between Connecticut claimants the decision of the commissioners is conclusive.

There is another bill of exceptions on the record. The application of Zebulon Marcey was for 300 acres, but the commissioners gave him 367 acres. The defendant’s counsel prayed the Court to instruct the jury, that the plaintiff could not recover more’ than 300 acres; but the Court was of opinion, that he'might recover the whole 367" acres. The Court was right. The act of 6th April, 1802, sect. 9, directs the commissioners to survey and certify the whole of each tract claimed by a Connecticut claimant, who shall establish his title thereto. So that if upon actual survey, the tract was found to contain more or less than the claimant supposed, that was immaterial; the commissioners were to ascertain the quantity, and give the claimant the whole tract to which he had shewn title. I am, therefore, of opinion, that the decisions of the Court of Common Pleas, were in all respects right, and their judgment should be affirmed.

Judgment affirmed.  