Jackson, ex rel. McLean v. Caywood — 7 Wend. 246

Majority

p. 246

Jackson, ex dem. McLean and others, vs. Caywood.

Headnote

The provision respecting payment for improvements in the act respecting the f military tract is retrospective; that is, payment can be claimed only where a settlement was actually made one the lands previous to the passage of the act in 1813.

So also the limitation as to bringing suits previous to the 1st January 1833, only,applies where the land was actually settled previous to 1813.

This was an action of ejectment, tried at the Wayne circuit in January, 1826, before the Hon. Enos T. Throop, then one of the circuit judges.

This action was brought since the 1st January, 1823, for the recovery of 125 acres, part of lot No. 8, Galen, in the military tract. The lessors of the plaintiff shewed title to the lot under Daniel McLean, the soldier, in whose name the patent issued, who died in 1782. The defendants read in evidence a warranty deed of the whole lot from G. Garth to W. Drum, bearing date in July, 1814, a deed of the premises in question from Drum to E. Scott, dated in February, 1825, and a contract for the sale of the same from Scott to the defendant, bearing date in May, 1816. He also proved that he went into possession of the premises in the winter of 1817, when they were wholly uncultivated ; that there are now 70 acres cleared and fenced, and a log house, barn and shop have been erected, and an apple and peach orchard have been planted. The only questions in this case are whether the lessors of the plaintiff are bound to pay the defendant for the improvements made upon the premises previous to the suing out of a writ of possession, under the “ act concerning lands in the military tract,” passed the 8th April, 1813, and whether the lessors are barred from a recovery, by having omitted to bring their suit previous to the 1st January, 1823. 1 R. L. 303, § 2 and 4. Three of the lessors were shewn to be within the saving clause of the statute; two being infants, and one a feme covert.

The third section of the act of 1813 provides,- “ that in all cases where any person or persons shall have actually settled on

p. 247

any lands granted by the said letters patent, under colour of any bona fide purchase by him or them made,” and an action for the recovery of such lands shall be instituted, and judgment pass against the tenant, the plaintiff shall not be permitted to sue a writ of possession, until he shall have paid the tenant the value of the improvements made upon the lands, and the mode for ascertaining the amount thereof is pointed out by the statute. The fourth section provides, “ that in all cases where any of the lands shall be settled in manner aforesaid,” the party claiming the same must bring his action before the 1st January, 1823, or he will be barred.

L. W. Ruggles, for plaintiff.

T. Spencer, for defendant.

By the Court

The defendant is not entitled to his improvements, under the second section of the “ act concerning lands in the military tract,” passed the 8th April, 1813, 1 R. L. 303, according to the decision in the case of Jackson v. Chapman, 3 Cowen, 390 ; and the construction there given of that section, making its operation exclusively retrospective, necessarily precludes the defendant from the benefit of the limitation upon persons claiming title • to dead soldier lots, contained in the fourth section ; that limitation in express terms operates in favor only of settlers described in the second section; and by the above decision they must have “ actually settled” on the land before the passing of the act, on the 8th April, 1813, to come within its provisions.

The plaintiff must have judgment of the whole lot.