COMMONWEALTH US. PEJEPSCUT PROPRIETORS. in the lands demanded, other motives are avowed than a disposition, on the part of the legislature, to avoid their act of March, 1787 Evidence of the kind thereby established must be regarded as of too high a nature to be contradicted by other proof, particularly when offered in the name of the party, high and respectable as it is, by and for whom the former declaration and act, still remaining in force, had been made. Of a common person we should say, Allegans contraria non est audiendus. (6) Upon the whole, judgment for the defendants, according to the verdict found for them, is to be rendered on this information, and a new trial is not granted. NOTE. In the counties of Kennebeck and Lincoln, where similar informations were filed, and the same question arose upon the demurrers by the attorney-general to the rejoinders of the defendants, the rejoinders were adjudged good. (6) 4 Inst. 273-1 Inst. 652.- Hargrave's note, 307 ADDITIONAL NOTE [Enfield vs. Permit, 5 N. H. 280, acc -F. H.] WILLIAM GRAY, Plaintiff in Error, versus WOODBURY STORER. Error does not lie on a judgment rendered on an agreed statement of facts, submitted by the parties for the opinion and decision of the Court. THIS was a writ of error, brought to reverse a judgment of this court, rendered February term, 1802, between these parties, a report of which was given in the supplement to the second volume of these reports, (p. 565.) Upon inspecting the record, and finding the judgment to have been rendered on a statement of facts agreed by the [*164] * parties, the Court ordered the plaintiff in error to become nonsuit, and he was called accordingly. (1) Davis (Solicitor-General) for the plaintiff in error. (1) 7 Mass. Rep. 380, Alfred vs Saco. (a) [Vide ante, p. 143, Bacon vs. Ward, in note to that case.- - ED.] GRAY TS. STORER, in Error. ADDITIONAL NOTE. [Error does not lie, where the facts proved before the jury are, by consent of parties, reported by the judge for the opinion of the Court.-Johnson vs. Shed, 21 Pick. 225. Nor, where a cause is by agreement referred to an auditor, voluntarily chosen by the parties, to report the amount due the plaintiffs, does error lie upon a judgment founded on such report. - Allen vs. Myers, 5 Rawle, 335 But see Smith vs. Moore, 6 Greenl. 274. See Ward vs. Crenshaw, 4 Yerg. 197.-F. H.] JOHN CUSHING AND WIFE, AND OTHERS, versus ELIJAH HACKET. Upon an information or inquest of office against the proprietors of a township of land, claiming under a grant from the government, to which was a condition annexed, that the same did not contain more than the quantity of land expressed in the grant or confirmation, it appearing to the Court that the township did contain more land than was granted, it was adjudged that the proprietors should hold within certain lines specified, provided that they released to certain settlers within the said lines the lands by them settled upon, and that the commonwealth should be reseised of the remainder; the judgment was holden good and binding on the proprietors, and all privies in estate, [being of the nature of a specific decree in chancery, pursuant to the jurisdiction and authority appointed and granted by the express provisions of the statute 1791, c. 13.] THIS was a writ of entry sur disseisin. The general issue being Joined, was tried before Thatcher, J., at the last October term in this county. The demandants produced to the jury a copy of a resolve of the General Court of the late Province of Massachusetts Bay, dated June 25, 1765, granting to Samuel verrish, Esq., and others, (the legal representatives and assigns of the original grantees of a certain township called Bakerstown, which fell within the limits of New Hampshire on the running of the boundary line between the two provinces,) "a township of the contents of seven and a half miles square in the unappropriated lands belonging to this province," with certain conditions and reservations in the said resolve contained; and "provided also that the said township shall be laid out on such part of the unappropriated lands belonging to this province adjoining to some former grant, to the eastward of Saco River." Also a copy of another resolve, dated October 30, 1765, reciting that the grantees described in the former resolve had returned a plan of a township, "containing the quantity of seven miles and a half square of land and water," and delineating the boundaries thereof; and had presented the same for acceptance; and thereupon ordering CUSHING & AL. vs. HACKET. that the same be accepted: "and the land therein contained is confirmed unto them, the said original grantees, their heirs and assigns, forever, they complying with the conditions of the grant. Provided the same doth not exceed the quantity of seven and a [ *165 ] half * miles square, exclusive of 8600 acres' allowance for ponds therein contained, nor interfere with any former grant." The demandants also produced a copy of a deed or indenture, dated October 27, 1774, between Jonathan Bagley, Moses Little, and Samuel Gerrish, on the one part, and a committee of the proprietors of the said township of Bakerstown on the other part, by which the proprietors, in consideration of certain services rendered them by said Bagley and others, assign and set off to them, the said Bagley and others, a certain portion of the said township in severalty and it was admitted by the tenant that the demandants are the lineal descendants of the said Bagley, as they have alleged in their writ; that the land demanded lies within that part of Bakerstown so assigned to the said Bagley and others; that the said Bagley and others duly entered into the land so assigned, immediately after the execution of the said indenture; and that, in the year 1777, the proprietors caused the head line of their said township to be run out and surveyed by one Amos Davis. The tenant produced a copy of the record of a judgment of the Supreme Judicial Court, rendered in June, 1794, upon an information or inquest of office filed in behalf of the commonwealth against the proprietors of Bakerstown; the said information reciting the grant aforesaid by the late province, suggesting that the said town. ship, as located by the grantees, contained 32,000 acres over and above the quantity contained in a tract of seven and a half miles square, with the said allowance for ponds thereupon, averring that the said grant was void for the breach of the condition aforesaid, and claiming process against the said proprietors, that they might show cause why the commonwealth should not be seised of the land so granted. After sundry continuances, and other proceedings had upon the said information, judgment was rendered, that the head line aforesaid should be the true head line of Bakerstown, and that the same town should be bounded by certain [* 166] lines in the said judgment * recited, "provided that the proprietors of Bakerstown aforesaid release all their right, title, and interest, to such part of the lands within the said lines as were actually settled upon before the said Davis run the said head line as aforesaid to such persons as were actually settled thereon before the said Davis run the said head line as aforesaid, or to their heirs or assigns; and that the commonwealth be seised of all CUSHING & AL. vs. HACKET. the lands contained in the confirmation of the General Court of the grant to Bakerstown, bearing date October 30, A. D. 1765, excepting such " part thereof as is above assigned and confirmed to the proprietors of Bakerstown." The tenant stated that he claimed the demanded premises under the said proviso. The demandants objected to the reading of this record, alleging that neither themselves nor the tenant were either parties or privies to the said judgment; and that the said proviso was null and void. Thereupon the judge who sat in the trial, for the reason assigned, refused to suffer the same to be read to the jury. The tenant excepted to the said decision; and the jury finding a verdict for the demandants, the action stood over to this term for the consideration of the said exceptions. Whitman, for the tenant, contended that the demandants, claiming under one of the original grantees of Bakerstown, were privies to the judgment in question, and bound by it. The Court had authority to prescribe the terms on which the forfeiture, which had been legally incurred, should be saved, and the proviso, being with in the jurisdiction of the Court, binds all parties and privies. Longfellow, for the demandants. The proviso annexed to the judgment in question was wholly inoperative and void. It was not within the legitimate powers of the Court to prescribe it, or to render a conditional judgment. The tenant then derived no rights under it. But whether the judgment is valid or not, the demandants claim nothing under it: they hold their estate under the origi nal grant and confirmation. *The lines recited in the judgment gave to the pro- [167] prietors no more land than was originally granted them. When the Court had assigned them those boundaries, they had exercised all the powers given them by the statute. (1) They were not authorized to transfer a part, and that without ascertaining, or even inquiring, how great a part, to strangers who had entered upon the lands without a shadow of title. The condition was also impossible, since the proprietors had transferred their claims and rights, before this judgment was rendered. Whitman, in reply. The Court here will not inquire into the quantity of land assigned to the proprietors by the judgment: if they did, it would appear that more was assigned by the judgment than was originally granted. This was not a conditional judgment. A part of the land lying within the boundaries recited was excepted, and this is within the powers given by the statute. (1) Stat. 1791, c. 13. CUSHING & AL. vs. HACKET. The demandants must hold, if at all, under the judgment, since the original grant was vacated by the fraud of the grantees, and annulled by the judgment. If the proprietors had put it out of their power to execute the releases prescribed, that is not to affect the tenant. Indeed, without executing the release, their title is yet void. Per Curiam. The demandants derive their right or title to the demanded premises from and under the proprietors of Bakerstown. The grant and confirmation, by the legislature of the late province, to those proprietors, of a tract of land, or township, including the demanded premises, was a conditional grant. So it appears by the resolves, which the demandants refer to as the evidence of their title. And as privies, claiming under the grant, they are subject to all the consequences of a defect in the title of the proprietors of Bakerstown, especially a defect which is, in fact, a failure in the conditions annexed to the grant to them, or a forfeiture, under those conditions, of the entire grant. (2) Besides, the statute directing inquests of office specially provides that all judgments rendered on any inquest of office, taken by virtue there[* 168] of, shall conclude all parties and * privies thereto, their heirs and assigns, so long as such judgments shall remain in force. By privies thereto must be understood those who are privies to the judgment by reason of their privity in any estate or title claimed under a grant or confirmation by the late province, or by the commonwealth, made on certain conditions, or in any other estate or title liable to be impeached and brought in question by an inquest of office. The judgment offered in evidence for the tenant was rendered upon an inquest of office, by which the commonwealth claimed to be revested in the tract of land described in the grant and confirmation to the proprietors of Bakerstown, the entire tract, including the demanded premises, for the breach of one or more of the conditions annexed to the grant; and, among the rest, the condition that the survey and boundaries, by which the grant was confirmed, did not include a larger quantity of land than the grant expressed. Upon this process a breach of this condition was found, or confessed by the parties impleaded. The proprietors of Bakerstown had included in their survey a much larger territory than they were entitled to hold by the terms of their grant; and they had recourse to the equitable jurisdiction of the Court in that case provided by the same statute. The entire forfeiture of the grant may be saved, when the only condition proved to be broken is, that the defendants hold more land, under such grant or confirmation, than they have (2) See 10 Co. 92, Dr. Leyfield's case |