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JOSEPH E. FOXCROFT, PLAINTIFF IN ERROR, v. DAVID MALLETT

January 1, 1846

JOSEPH E. FOXCROFT, PLAINTIFF IN ERROR,
v.
DAVID MALLETT, DEFENDANT.



THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maine.

It was a writ of right sued out by David Mallett, an inhabitant of New Hampshire, demanding two lots of land situated in Lee, in the county of Penobscot, and State of Maine, being lots numbered eleven in the fourth range, and eleven in the fifth range, containing two hundred acres, more or less, in said town of Lee.

As an illustration of the chain of title, on the part of both plaintiff and defendant, the reporter has prepared the two following diagrams, showing the title as exhibited upon the trial by the plaintiff and defendant respectively.

On the 19th of February, 1805, the State of Massachusetts passed the following resolution.

No. 1.

'Resolve on the Petition of the President and Trustees of Williams College, granting them a Township of Land, with a Proviso. February 19, 1805.

'The committee of both Houses, to whom was referred the petition of the President and Trustees of Williams College, praying the aid of government to enable them to build a chapel for the performance of divine service, and for keeping the College library and apparatus, having examined the origin, rise, and progress of that seminary, from its institution to the present time, together with the aid heretofore afforded by the government, and the existing state of its funds, beg leave to observe, that the funds granted by the original donor and the government have, in the opinion of the committee, been judiciously applied to the object of the institution, and with success exceeding the most sanguine expectations, and that the present state of the College affords a reasonable and pleasing expectation of its future extensive benefits to society, and that a chapel, for the purposes above mentioned, would effectually promote the same; and as the encouragement and grants of the government to that College have not been equal to those made to other seminaries in the Commonwealth, the committee ask leave to report the following resolve, which is submitted by Ezra Starkweather, per order.

'Resolved, For reasons set forth in the petition, that there be, and hereby is, granted one township of land, of the contents of six miles square, to be laid out and assigned from any of the unappropriated lands belonging to the Commonwealth in the District of Maine, excepting the ten townships lately purchased of the Penobscot Indians, the same to have vested in the President and Trustees of Williams College and their successors for ever, for the use, benefit, and purpose of supporting the said College, to be by them holden in their corporate capacity, with full power and authority to settle, divide, and manage the same, or to sell, convey, and dispose thereof, in such way and manner as shall best promote the interest and welfare of said College; the same to be laid out under the direction of the committee for the sale of Eastern lands, at the expense of the said corporation, and a plan thereof to be lodged in the secretary's office.

'Provided, The trustees of said College, or their assigns, shall cause to be settled fifteen families in said township within twelve years from the passing of this resolve; and also, that there be reserved in said township three lots, of three hundred and twenty acres each, for the following uses; namely, one lot for the first settled minister; one lot for the use of the ministry; and one lot for the use of schools, in said township.'

And on the 27th of January, 1820, the following.

No. 2.

'Resolved, That the commissioners of the land-office be, and they hereby are, authorized and empowered to satisfy a grant of a township of land of the contents of six miles square, made by a resolve of the nineteenth of February, eighteen hundred and five, to the President and Trustees of Williams College, by locating the same, and conveying the said corporation township number three, in the second north of Bingham's Penobscot purchase, the same being numbered four, as surveyed by Alexander Greenwood. Provided, said grantees, or their assigns, shall first pay to said commissioners the expense of surveying and locating said township, and give security to the Commonwealth in a manner satisfactory to said commissioners, that they will, within one year from the passing of this resolve, cut out a road, two rods wide, from the termination of the road commonly called the St. John's Road (which has been opened, under the direction of said commissioners, from Penobscot River into township number two in the first range) to said township to be conveyed, and clear a travelled path therein of one rod in width; and that within two years they will clear a like road through said township, so to be conveyed, and make the necessary causeways and bridges thereon, all in a manner to be directed by said commissioners; and within three years will place on said township thirty families as settlers, of the description named in the act for promoting the sale and settlement of the public lands in the District of Maine; also reserving in said township the usual public lots.'

On the 15th of February, 1820, the commissioners executed a deed to the College, in which they recite the preceding resolution and proceed thus:––

'Now, therefore, know ye, that we, the undersigned, whose seals are hereunto affixed, appointed commissioners for promoting the sale and settlement of the public lands in the District of Maine, conformable to an act passed the fifteenth day of February, eighteen hundred and sixteen, by virtue of powers vested in the undersigned, and pursuant to the resolve of the twenty-seventh day of January, eighteen hundred and twenty, herein recited, do by these presents, in behalf of the Commonwealth aforesaid, assign, relinquish, and quitclaim to the President and Trustees of William's College, and their successors for ever, one township of land, of the contents of six miles square, lying in the county of Penobscot, as the same was surveyed by Alexander Greenwood, in the year of our Lord one thousand eight hundred and eleven, bounded and described as follows; namely, southerly on township number three, in the first range; westerly on located land; northerly on unlocated land; and easterly on township numbered four, in the second range, containing twenty-three thousand and forty acres; conditioned, however, that the said grantees, their successors and assigns, shall lay out three lots of three hundred and twenty acres each, for public uses. One lot for the first settled minister, his heirs and assigns; one lot for the use of the ministry; and one lot for the use of schools, in said township.

'To have and to hold the aforegranted premises to the President and Trustees of Williams College, their successors and assigns, on the conditions aforesaid, for ever. In witness whereof, we have hereunto set our hands and affixed our seals, this fifteenth day of February, in the year of our Lord one thousand eight hundred and twenty.

EDWARD H. ROBBINS. [L. S.]

LATHROP LEWIS. [L. S.]

JOSEPH LEE. [L. S.]

'Signed, sealed, and delivered in presence of

SAM'L REDDINGTON.

GEORGE W. COFFIN.'

On the same day, namely, the 15th of February, 1820, the treasurer of the College executed the following deed to Nathaniel Ingersoll.

'Know all men by these presents, that I, Daniel Noble, of Williamstown, in the county of Berkshire and Commonwealth of Massachusetts, esquire, treasurer of the corporation of Williams College, for and in consideration of the sum of four thousand six hundred dollars, secured to be paid to said corporation by Nathaniel Ingersoll, of the town of New Gloucester, in the county of Cumberland and Commonwealth aforesaid, have given, granted, sold, and conveyed, and by these presents, in behalf of said corporation, do give, grant, sell, and convey unto the said Nathaniel Ingersoll, a township of land lying in the county of Penobscot and Commonwealth aforesaid, and containing twenty-three thousand and forty acres, as the same was surveyed by Alexander Greenwood, in the year one thousand eight hundred and eleven, bounded and described as follows; namely, southerly on township number three in the first range; westerly by unlocated land; northerly by unlocated land; and easterly on township number four in the second range, the same being township number three in the second range of townships north of Bingham's Penobscot purchase, and numbered four by said Greenwood; conditioned, however, that the said Ingersoll, his heirs and assigns, shall lay out three lots of three hundred and twenty acres each, for public uses; one lot for the first settled minister, his heirs and assigns; one lot for the use of the ministry; and one lot for the use of schools in said township. To have and to hold the aforegranted premises to the said Nathaniel Ingersoll, his heirs and assigns for ever, on the condition aforesaid; and the said Daniel Noble, treasurer of the corporation of Williams College, covenants with the said Nathaniel Ingersoll, that he has good right to sell and convey the premises aforesaid, and that said corporation shall warrant and defend the same, on the condition aforesaid, to the said Ingersoll, his heirs and assigns for ever, against the lawful claims and demands of all persons.

'In witness whereof I have hereunto set my hand and affixed the seal of the corporation of Williams College, this fifteenth day of February, in the year of our Lord one thousand eight hundred and twenty.

DANIEL NOBLE. [L. S.]'

'Signed, sealed, and delivered in presence of us.–the word 'each' being first interlined in the twenty-sixth line of the first page.

LATHROP LEWIS.

GEORGE W. COFFIN.'

'Suffolk ss. Boston, 16th February, 1820.

'Then personally appeared the honorable Daniel Noble, in his said capacity as treasurer of said corporation, and freely and voluntarily subscribed his name and affixed the seal of said corporation as the act and deed of said corporation, and delivered the same before me.

GEORGE W. COFFIN, Justice of the Peace.'

This last deed, although executed in 1820, was not delivered to Ingersoll until June 5th, 1827, being deposited, in the mean time, with the agent of the College, as an escrow.

On the same day, namely, the 15th of February, 1820, Ingersoll conveyed to William Hodgkins, one undivided forty-sixth part of the township, saving and reserving out of said forty-sixth part, so called, one forty-sixth part of the lands reserved in the grant of said township to the President and Trustees of Williams College, for public uses.

On the 17th of March, 1820, Ingersoll, with eight other persons, executed to the treasurer of Massachusetts a bond, in the penalty of three thousand dollars, with the following condition, namely:––

'The condition of the above obligation is such, that whereas the above Nathaniel Ingersoll, and others above named, have become the assignees of a township of land, being numbered three, in the second range of townships north of Bingham's Penobscot purchase, the same being numbered four, as surveyed by Alexander Greenwood, and the same that was conveyed by the commissioners of the land-office, the fifteenth day of February last, to the President and Trustees of Williams College, conformable to a resolve, passed the twenty-seventh day of January, eighteen hundred and twenty, and as such have paid the expense of surveying and locating said township. If, therefore, the said Nathaniel Ingersoll, Roger Merrill, Jonathan Page, Thomas Merriman, Thomas Skofield, Jacob Randall, Simeon Tryon, Jacob Davis, and Hugh Nevens shall, within one year from the passing of said resolve, cut out a road, two rods wide, from the termination of the road commonly called the St. John's Road (which has been opened, under the direction of said commissioners, from Penobscot River into township number two in the first range) to said township, and clear a travelled path therein of one rod in width; and that within two years they will clear a like road through said township, and make the necessary causeways and bridges thereon, all in a manner to be directed by said commissioners, and within three years will place on said township thirty families, as settlers, of the description named in the act for promoting the sale and settlement of the public lands in the District of Maine, then this obligation to be null and void, otherwise to remain in full force.'

On the 16th of May, 1821, Ingersoll conveyed to Eleazer Greeley one thousand acres of land, 'in common and undivided, with the reservation of the public lands.'

On the 7th of May, 1825, Hodgkins reconveyed the same land which Ingersoll had deeded to him to Ingersoll, and Samuel T. Mallett.

On the 5th of June, 1827, three several deeds were executed, and in order to enable himself to execute one of them, Ingersoll received the deed which had so long been kept as an escrow by the College, namely, the deed of the 15th of February, 1820, by which the College conveyed the entire township to Ingersoll. Being now in possession of his deed,

1. Ingersoll conveyed to Samuel T. Mallett 'six thousand acres of land, in common and undivided, in the township of land lying in the county of Penobscot, as the same township was surveyed by Alexander Greenwood, Esq., in the year 1811, the same being township numbered three in the second range of townships north of the Bingham Penobscot purchase, and numbered four by said Greenwood, being the same conveyed to me by the President and Trustees of Williams College, as described in their deed, dated February 15th, 1820, and this day delivered to me, reference thereto being had; excepting and reserving the lots marked as settlers' lots on a plan of said town made by John Webber, and excepting also the lot on which I have improved, which are not to be subjected to a draft; subject, however, to the condition that the said Mallett shall perform his part of the settling duties in proportion to the land conveyed, and also that from said six thousand acres a part of the public lands reserved shall be taken in proportion as said six thousand acres bears to the whole township.'2. Greeley conveyed to the same Samuel T. Mallett 'all my right, title, and interest in and to one thousand acres of land, in No. 4, second range, north of Bingham's purchase, and east side of Penobscot River, in common and undivided, with the reservation of the public lands, being the same I purchased of Nathaniel Ingersoll, as per deed dated May 16th, 1821.'

3. Mallett, being in possession of these two branches of the entire title, mortgaged one of them (namely, the one which he had just received from Ingersoll) to the College, to secure the payment of certain notes to the College. As the whole case turned upon the construction of this mortgage, and what passed under it, the whole paper is inserted.

'Know all men by these presents, that I, Samuel T. Mallett, of Litchfield, in the county of Lincoln, yeoman, in consideration of the sum of three thousand dollars paid by the President and Trustees of Williams College (the receipt whereof I do hereby acknowledge), do hereby give, grant, bargain, sell, and convey unto the said President and Trustees of Williams College, and their successors, for ever, six thousand acres of land, in common and undivided, in the township of land lying in the county of Penobscot, as the same township was surveyed by Alexander Greenwood, in the year 1811, the same being township numbered three in the second range north of the Bingham Penobscot purchase, and numbered four by said Greenwood; being the same this day conveyed to me by Nathaniel Ingersoll, as by his deed, reference thereto being had.

'To have and to hold the aforegranted and bargained premises, with all the privileges and appurtenances thereof, to the said President and Trustees, their successors and assigns, to their use and behoof for ever. And I do covenant with the said President and Trustees, their successors and assigns, that I am lawfully seized in fee of the premises; that they are free of all encumbrances; that I have good right to sell and convey the same to the said President and Trustees, to hold as aforesaid; and that I will warrant and defend the same to the said President and Trustees, their successors and assigns, for ever, against the lawful claims and demands of all persons.

'Provided, nevertheless, that if the said Mallett, his heirs, executors, or administrators, pay to the said President and Trustees, their successors, heirs, executors, administrators, or assigns, the sum of three thousand dollars, in equal annual payments, in one, two, three, and four years, with interest, annually, on the whole, from the 1st day of January last past, as by notes dated May 28th, 1827; then this deed, as also four certain notes of the above date, given by the said Mallett and Jonathan Hodgman, to the said President and Trustees, to pay the sum and interest at the times aforesaid, shall both be void; otherwise, shall remain in full force.

'In witness whereof I, the said Mallett, have hereunto set my hand and seal, this 5th day of June, in the year of our Lord one thousand eight hundred and twenty-seven.

SAMUEL T. MALLETT. [L. S.]

'Signed, sealed, and delivered in presence of

NATH'L INGERSOLL.'

On the 6th of February, 1828, Ingersoll conveyed to Mallett a certain piece or parcel of land situated in No. 3, in the county of Penobscot, being one half of lot numbered eleven, in the fifth range, in common and undivided, being one of the settlers' lots, the half of said lot containing fifty acres; said land being north of Bingham's Penobscot purchase in the county of Penobscot.

On the 16th of April, 1828, a meeting of the proprietors was called, 'To see what measures the said proprietors will adopt to divide and apportion said lands, and to act thereon as may be judged proper.' After sundry proceedings and adjournments, the meeting voted, on the 1st of July, 'That the proprietors will proceed to divide and apportion the lands reserved to be set off as public lots,' and a committee was appointed to perform this duty. The report of the committee was adopted by the meeting. After setting off nine hundred and sixty acres as 'ministerial lands,' and some other proceedings, it was voted, 'To assign and set off twenty-seven lots as settlers' lots; namely, to Nathaniel Ingersoll, thirteen lots, which he has sold to settlers, and on which improvements have been made, as so much towards his share. Also, to Samuel T. Mallett, fourteen lots, being lots which he has sold to settlers, as so much towards his share in said lands.'

Amongst the lots thus assigned to Mallett were lots No. 11 in range 4, and No. 11 in range 5, being the two lots in controversy in the present case. The meeting then proceeded to make division by lot of the lands not reserved for public lands; and not reserved to be holden as tenants in common among the several proprietors, according to their several rights in said township; and not assigned to Nathaniel Ingersoll and Samuel T. Mallett.

On the 12th of August, 1829, Samuel Mallett conveyed to David Mallett, the plaintiff below, the two lots in question.

On the 26th of July, 1832, the notes to the College not being paid by Samuel Mallett, the College brought an action called a 'plea of land,' in the nature of an ejectment, to recover sixty-eight lots of one hundred acres each, which had been drawn to the share of said Mallett as above set forth, the action being for 'six thousand acres in common and undivided.'

At June term, 1837, the case came on for trial, and was left to a jury, who found a verdict for the plaintiffs, and the judgment of the court was, 'that the said President and Trustees of Williams College recover against the said Samuel T. Mallett their title and possession of and in the demanded premises, and that a writ of possession issue accordingly, unless the defendant, his heirs, executors, administrators, and assigns [pay] the sum of five thousand three hundred and five dollars and ...


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