Huidekoper v. Douglass. expired with the two years after the date of the warrant, or of the close of the war. *The land is to be granted to other actual settlers; *47] this term is explained in the 5th and 10th sections, and means those who were actually on the land and had begun their settlement. The commonwealth could not grant these lands to actual settlers, unless there was *a private right of entry, for there cannot be actual settlement, with*48] out actual entry. These expressions of the act imply as complete a right of entry as a warrant itself. By the act of the 22d of April 1794, vol. 3, p. 581, 636, no warrant can be obtained for unimproved lands. There must be a previous actual settlement. *49] *It is not necessary that any act should be done on the part of the commonwealth, because there is no title to be defeated. But if she is bound to do any act, the act of the actual settler is her authorized act. He cannot be a trespasser, because the land was vacant. *By the *50] 15th section of the act, certain holders of warrants theretofore granted are authorized to locate them in any district of vacant land in the state, provided that the owners of such warrants "shall be under the same regulations and restrictions, as other owners of warrants taken for lands lying north and west of the Allegheny river and Conewango creek are made subject by this act ;" that is, they are to make their settlement in two years from the date of their warrants, although their warrants were more than two old when the act *passed. This can only be done by giving a *51] years construction to this section similar to that which we contend ought to be given to the 9th. W. Tilghman, on the same side. The treasury of Pennsylvania was overflowing by the sales of lands between 1784 and 1792. The utmost that has been received from the sale of the lands under the act of 1792, including the tract called the triangle, is $500,000. There are two descriptions of persons contemplated by the act. 1st. The moneyed man who could procure settlers; and 2d. The hardy but poor actual settler, who was to have a credit of ten years for his purchase-money. The state did not want money, but a barrier. Population, and not revenue, was the object. The actual settlement of the land was the sine qua non *of the contract. This appears from the whole tenor of the act itself, *52] as well as from the general circumstances and policy of the state. The term actual settler has two different significations, as used in the act. But there can be no settlement, without actual personal residence. An actual settler sometimes means a person who is on the land, with an intent to remain, and sometimes it means fencing, clearing, cultivating, building and residing five years. By the act of the 30th December 1786, vol. 2, p. 488, it is declared, "that by a settlement shall be understood an actual, personal, resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family, and continued from time to The plaintiff, therefore, having failed to show a title sufficient to enable him to recover in this action, it is unnecessary to say any thing about the defendant's title, and your verdict ought to be for the defendant.1 The jury found for the defendant. 1 See also, Huidekoper v. Douglass, 1 W. C. C. 109; and Huidekoper v. McLean, Id. 186. Huidekoper v. Douglass. time, unless interrupted by the enemy, or by going on the military service of this country during the war." Thus, the word settlement, in the 8th section, is used in its common acceptation. It is merely the inception of title; but the settlement mentioned in the 9th section is the completion of title. The 9th section was intended to define more exactly what kind of settlement should vest a title. There being, then, no settlement without residence, and no time of residence prescribed, except the five years, if there has not been such a residence, there has been no residence, and if no residence, no settlement. Settlement, therefore, includes both improvement and residence. Every tract of 400 acres was to be specifically settled. The misfortune of the Holland Company was, that they undertook an impossibility. They had engaged to settle 1162 tracts in two years. The words "in default," &c., show that settlement was the main object. It is improbable, that the proviso should be intended totally to defeat the great object of actual settlement; and yet that would be its effect, if the war should continue for two years, which, at the time of passing the act, was a very probable event. *Much reliance has been placed on the words, "as if ;" yet, on our [*53 construction, we allow them their full effect. The settlement was to be made in two years; but, says the proviso, if you shall be prevented from making it within two years, and persist until it be accomplished, you shall hold the land as if it had been made within the two years according to the enacting clause. But if persisting two years in time of war gives a complete title, the proviso gives the purchaser in time of war better terms than the enacting clause gives to a purchaser in time of peace. For the latter is obliged to settle and reside five years, while the former gets the land without any such condition. But, say they, the proviso operates in favor of those only who have been prevented from improving. Suppose, a man has improved, but is driven. away before the end of his five years' residence: upon their construction, he would lose his land, while that of the man who has done nothing, would be saved. We admit, that persistence is not required during the war; for it would be idle to impose unavailing efforts; and the question, what is persistence? would open a door to endless litigation. One jury would decide one way and another the contrary. The persisting is to begin when the war ceases. If actual settlement means only improvement, it would be absurd to say, made and continued. The word continued cannot apply to a thing which, when once done, is done for ever. There was the same reason for settlement after the war, as during its existence. Ingersoll, in reply.-Three questions arise in this case. 1st. Are endeavors persisted in, accepted by the act as a substitute for actual settlement and residence? *2d. For what period must those endeavors be continued, [*54 so as to operate as a dispensation with the condition, and amount to such substitute? 3d. If a forfeiture has been incurred, who is to take advantage of it? actual settlers, or the commonwealth ? 1st. Does the act contemplate a persistence in endeavors as a substitute for actual settlement and residence? It may be necessary first to ascertain the meaning of the words improvement, settlement and residence, both in their general import, and in the appropriate sense in which they are used in 3 CRANCH-3 33 Huidekoper v. Douglass. the act of 1792. By improvement is understood clearing, cultivating or building on lands previously unappropriated. In degree, it is infinitely various, from the blazing of a tree with a tomahawk to the highest degree of cultivation. The first improver has generally been favored in Pennsylvania But by the present act, he has no preference, except in certain specified cases. Improvement and settlement are not convertible terms. There may be improvement, without settlement, but there cannot be settlement, without improvement. Settlement, in the order of things, is subsequent to improvement, and includes it. It signifies a place on which a person lives, after having made an improvement, with or without his family. Whenever the residence commences, the settlement is computed from the time that the improvement was first tenanted. The act of assembly adopts words of a previously ascertained import. Warrant, survey, improvement and settlement were an inception of, and gave to the warrantee, a defeasible title. The patents were not to issue until after five years' residence, when the right was complete and indefeasible. Payment of the purchase-money, warrant and survey, gave a defeasible title, inchoate and possessory. This *right, whatever it was, was liable to *55] forfeiture by a non-compliance with the terms of the act. Residence is a continued settlement. Improvement, as described in the act, settlement and residence for five years next following the first settlement, were conditions precedent, not to a possessory, but to an absolute title, unless prevention by war should furnish an excuse. That improvement, settlement and residence are used in the act as successive and distinct terms, is evident from the act itself. The 5th section speaks of land settled and improved; the 7th, of actual settlement and improvement; and the 9th, of actual settlement and residence; and of actual settlement made and continued. The settlement, including such an improvement as is described in the law, is to commence within two years from the date of the warrant. The residence for five years is to commence from the first settling. Hence, residence is a continuation of settlement, not a constituent part of it. It it true, that the legislature, when declaring by what means a settlement shall be made, have included a residence of five years, but the absurdity of including a residence of five years, in a settlement to be made in two years, evidently shows that they have admitted an error in their language. It is clear, that they do not mean what they say, and the question is, what did they mean to say? To make the least possible alteration in the words, so as to express their meaning, is to substitute the future tense for the participle; “shall reside,” instead of "residing." This removes all the difficulties of the language, and throws great light npon the whole act. The sentence will then read thus: "no warrant shall vest any title in the lands, unless the grantee shall, within two years from the date of such warrant, make an actual settlement thereon, by clearing, fencing and cultivating at least two acres for every hundred, erecting thereon a messuage for the habitation of man, and shall reside thereon for the space of five years next following his first settling of the same." If, then, the word "residing" be rejected for its substitute "shall reside," *there is nothing in the act to justify the *56] proposition that settlement includes five years' residence. There is not another word in the whole act which can suggest such an idea; on the contrary, there are many expressions totally repugnant to the supposition. Huidekoper v. Douglass. Having thus endeavored to ascertain the meaning of the terms improvement, settlement and residence, let us consider the meaning of the proviso. We contend, that if the grantee has, by force of arms of the enemies of the United States, been prevented from making an actual settlement, within two years after the date of his warrant, having during that time persisted in his endeavors to make such settlement, such persistence, though ineffectual, is accepted as a substitute for actual settlement and residence. We admit, that it was with a hope that hardy adventurers would effect an establishment reaching from the Ohio to Lake Erie, and cut off the intercourse between the northern and the western Indians, that the assembly of Pennsylvania passed the law in question. It was at a time when the President of the United States was preparing to hold a treaty of peace with the western Indians, at Detroit; and in the same session, they authorized the employment of a military force to aid and strengthen those who were exposed on the frontiers. We agree, that it was to encourage the immediate actual residence of bold but poor men, that the legislature required no purchasemoney for ten years from such as placed themselves upon the lands and began settlements. To this description of adventurers, they gave a further security, by protecting them against all warrants not entered in the books of the surveyor of the district, at the time the settler fixed himself on the land. From such as inclined to pay money, and operate by placing tenants on the land, and giving such tenants bounties for settling, they required a prompt co-operation with the actual settlers, in accomplishing the great undertaking. Let it be recollected, that the person who claimed by actual settlement could hold but one tract, the warrant-holder as many as he could pay for, using only different *names which is perfectly known to be but matter [*57 of form. The warrantees were obliged to place a settler on each tract, within two years from the date of the warrant, if there should be peace, and at all events, to be ready, and make the attempt, to support the settlers, if the war should continue. Thus they made it the interest of both descriptions, operators with money, and operators with labor, to make a joint and steady effort for two years to realize the expectations formed of this new barrier. state. Here it may not be improper to remind the court, that, as the law of Pennsylvania then stood, any alien might purchase and hold land in that It has been said, that the act was not intended to give an opportunity for speculation; it was certainly intended that foreigners should buy any quantity of land, to the extent of their means of payment. We do not wish to treat this subject technically; but from the very nature of the property, and the condition as expressed in the law, the grantee has a right to enter upon the land, maintain suits for its recovery or defence, take the profits, alienate, mortgage it, bind it by suffering judgments, transmit it to heirs, subject only to the conditions of the original grant. Suppose, there had been no proviso; take the enacting clause of the section absolutely by itself, what would be the condition of the holders of warrants dated in 1792 and 1793? The warrantee might enter, nay, he was bound to enter, by the nature of his grant; the public enemy prevents him ; the state and the United States are unable to protect him; without any laches in him, the performance of the condition becomes impossible, by the Huidekoper v. Douglass. act of the public enemy. Would the common law say that the estate should be lost? Are not these conditions what the law terms subsequent? If precedent, no interest could arise. The warrantee could exert no act of ownership, until the *conditions were all performed. Here, his performance depends upons his being exclusively the possessor and owner. *58] In one sense of the word, all conditions are precedent; that is, they ought to be performed, before the estate becomes absolute; but in law, those only are termed precedent which must be performed before the grantee can enter upon the estate or recover at law. Conditions subsequent refer to cases where the party may immediately take and enjoy the grant, but perform afterwards, having, in the meantime, a qualified title, and the right of possession. Is it not a settled and a reasonable rule, that conditions tending to defeat an estate, once qualifiedly vested, shall be construed strictly? and also, that courts will hold a condition to be either precedent or subsequent, according to the intent of the party creating it, whatever be the form of words, and when the same words may constitute either the one or the other, according to the nature of the case? We are to show that there is a substitute for actual performance; what that substitute is, will be a subject of inquiry under the 2d head. The legislature considered two years as a reasonable time after the date of the warrant, in which to complete the specified improvements in a season. of peace. A distant wilderness was to be explored, provisions to be collected and transported; clearing, cultivating and building, where laborers were scarce, were difficult and of slow progress. Actual settlement within two years was of indispensable necessity, in order to obtain full title, unless prevented by the enemies of the United States. The question then offered itself to the legislature, shall the continuance of the war release the condition and endeavors be equivalent to performance? *59] *We contend, that the principle of the proviso is, that if the warrantee does what he can, according to circumstances, he shall not be injured on account of the war, nor thereby be delayed in the acquisition of his title. The price of the lands, and the terms of purchase, were fixed upon the basis of peace. Twenty dollars per hundred acres, with the condition of settlement and residence, was a full consideration in a time of peace. The legislature could not expect to get better terms in a time of war. As the price was to be the same in war and peace, the modification must be in the terms of the condition of settlement and residence. If, with the same price, you exact similar conditions of settlement and residence, at an indefinite distance of time, and after an intervening war, during the whole of which you require a constant persistence in endeavors to make such settlement, you, in effect, increase, you double or multiply the sum to be paid as the consideration of the land; and in addition to the original terms of price, settlement and residence, you gain the use of the money, and the co-operation of individuals in forming that barrier, which was one of the great objects of the act; the purchaser loses both the interest of his money and the use of his land. It is impossible, therefore, to require endeavors during, and accomplishment after, the war, and yet say, that the purchaser does not pay a higher price for the land on account of the war. It becomes important to consider, whether the endeavors were to be |