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Kirk

Smith.

1824. Nor is it immaterial, to note the particular phra

seology bere made use of. The words are,"reserved out of the said proprietary tenths, or manors, or the part or parts thereof which have been sold.” Now the lands sold to these defendants below, were sold out of the general funds of the State, and the quit-rent on these was reserved out of the land of the State, and not of the manor, for that had no legal existence when this sale and reservation were made. The land was not sold as part of the manor, nor was the rent reserved out of part of the manor.

But, secondly; there is not a pretext for this supposed resulting legal estate in the Penns, exoept the assumed reservation to them of the balance of purchase money on the grants held within their lines upon common terms.

And how does this stand ? It will be found to be only an implied grant, to which this implied legal estate is appended ; an implication tacked to another implication; and finally, as the concluding link of this chain of implication, that ejectment is the remedy reserved for the recovery of that balance of the purchase money, which is itself the subject of the first implication.

If the rights of the Penns be circumscribed by the positive enactments of this law, then are they not only precluded from all claim to the balances due by this class of grantees, but also from those due by every description of purchasers ; for there is. no positive provision in the law which vests those balances in them. Their quit-rents are expressly reserved to them in the manors, but not so

1824.

of pur.

Kirk

Smith.

with their balances of purchase money. But in the 9th and 10th sections, these

these arrearages chase money are excepted from the provisions of the law, whthout any express declaration to whom they shall belong; and from this, an implication is supposed to result in their favour. But surely, so far as relates to the balances due by the general grantees, the implication is so far from being a necessary implication, that its bearing is altogether the other way; the implied intent of the Legislature is against a construction so obviously inconsistent with the general purposes of that body; a construction producing such an unjust, unreasonable, and improbable discrimination between innocent and equally meritorious men of the same class. Construe the act so as to confine the grant to the Penns to their private interests in the manors, and it becomes sensible and consistent throughout; and while it secures to them, on the one hand, all the interests which, as individuals, they are entitled to; on the other hand, you extend to all other indiv:dual citizens, one uniform role of legislation and relief.

Again; there is no reason for supposing that when the Legislature uses the terms tenths and manors aforesaid, in the 9th section, or the said tenths and manors, in the 10th section, that it uses them in any other sense than that in which they are used in the 8th section. The terms used, in fact, identify their meaning. But a correct construction of the terms used in the 8th section, in describing these tenths, or manors, is fatal to all implication in favour of the Penns, with reference to any

Kirk

Smith.

1824. interest in the lands legally seated, previous to

their approp.iation. The words are, “tenths, or manors, duly surveyed and returned into the land office.” But who will deny, that these words are to be construed with reference to the intent and effect of such surveys? And what was that intent and effect ? simply to appropriate unseated lands. Would these proprietaries have been content in laying off these surveys, to have been precluded and deprived of half their interest by previous surveys, over which they could not have exercised the right of selling or retaining, as they thought proper ? If not, then, so far as relates to previously ceded lands, they never were appropriated by them, and it cannot be predicated of them, that in the sense of the parties they were surveyed and returned.

The construction now contended for, is obviously an after thought of the plaintiffs below, growing entirely out of a supposed ambiguity in the words of the confiscation act, and would have been strenuously resisted, had they been so applied when their surveys of manors were first made. .

Again; the rule of construction applicable to leases and wills are not essentially different in their principles. In legislating on this subject, the State had assumed all the rights, and, at least, could exercise all the powers of a manor-holder, in making his last will. Although by the charter, the purchasers under manors are restricted from any alienation of their purchases, by which they might be devested of the incident of holding directly of the manor, it is obvious that such a change of

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1824.

Kirk

Smith.

estate might be produced, by the act of the manorholder. Suppose, then, the grantees of the manor of Springetsbury had sold any portion of the soil, and devested it of this incident, lying, we may suppose, in the very centre of the whole, would a devise in the very words of this act, “to wit, of the manor of Springetsbury, as duly surveyed and returned,” have been construed to carry the portion previously disposed of? Or, to pursue the analogy

further; suppose the purchase money unpaid, and a covenant by indenture of the tenant to pay the money to the vendor and his heirs, and even to hold the land charged with the payment, would a devise of the manor carry the money so reserved, or the devise of the debt carry the freehold in the land sold ?

But, on this doctrine ot' implication I will make another observation. It is rebutted by the provisions of the instrument itself; and, in the case of 2 will, would be considered as an undisposed residue; for, when we look through the whole act, and find this 8th section to be the only one which purports to give any thing to the proprietaries, their whole interest having been previously confiscated; and when, in this section, we find their in-. dividual interests in the soil of the State, whether acquired as other individuals, or as proprietary appropriations, carefully designated, and even to the arrearages of quit-rents on such lands, expressly reserved to them ; surely the implication arises, that this section was intended to embrace the whole provision meant to be made for them out of the common patrimony of the State.

1824.

Kirk

Smith.

The omission to mention and reserve the arrearages of purchase money due on the manorial salee, might, with much greater reason, be urged as raising a presumption against their claims even to those balances. This, however, I reject; and for a reason which serves to throw some light upon the subsequent clauses of this statute; which is, that as the Legislature, in so many words, recognises these alienations as individual sales, they very properly considered the balances due thereon 'as private debts; and, as no confiscation of private debts could be implied from the enacting clauses of the act, so no express reservation of such balances was deemed necessary. The subsequent exceptions in favour of balances due on manorial lands, therefore, I consider as intended only to guard against an extension of the words of the law to such individual contracts. The nine tenths of the soil, and the balances of purchase money due on such parts as had passed to individuals, they considered as the property of the body politic, and appropriated it as such to the State. The one tenth set apart for the proprietaries, they propose to put on the same footing with their individual interests, properly so called, and with it, to reserve to them the balances due on the lands appropriated to themselves. These are fair and consistent inferences, if not positive enactments; but it would be much more consistent with the positive enactments, to hold, that all the balances due on the lands circumscribed by the manorial lines, were still at the disposition of the Legislature, than that they meant to

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