Levi Woodbury

“ But if the title to them did not pass at all by that mortgage, on account of the exceptions or reservations, either in it or the prior deed, which are applicable to the premises; or if it passed on conditions which have since vested these lots in David Mallett, as settlers' lots under the act to encourage the sale and settlement of lands in Maine,-then he, as settler and grantee of the same, ought now of right to possess them. The general aspect of the whole case is, we think, strongly in favor of the right set up by the demandant. ”

“ In our view, it operates like a covenant, which runs with the land; and all assignees are bound by covenants real, that run with the land. Spencer's case, 5 Coke, 15-17; Co. Litt. 47, a; Shep. Touch. 161, ch. 6, 176; Com. Dig. Condition; 3 D. & E. 393; 1 Paige's R. 412, 455.
The condition, or charge, was also public,-on record, in extenso, in the deed from Ingersoll. That deed was expressly referred to in the mortgage to the College; and the value of the whole, in Samuel Mallett's hands, or in those of his mortgagees, would be known by all to be, at that time, reduced in proportion. ”

“ Mallett v. Foxcroft, 1 Story's R. 477. But we are inclined to think, that so stringent a view of his ruling is not indispensably necessary; and if it were, we see no reason why the judgment is not to be sustained, as right in substance, and according to the merits of the case,-if, at the time the writ of right was brought, the title to these lots was not in the mortgagee or his grantees, but was rather in the demandant, under one of the views or constructions before mentioned. ”

“ The learned judge might well mean, that the mortgage 'does not comprehend and cover the two lots' in dispute, as matters stood, after the settling, partition, and conveyance to David Mallett, and he would thus regard the provision as a condition which had been executed. ”

“ But should the opposite construction, contended for by the tenant, prevail, the College and its assignees will get back, under a mortgage to secure a part of the consideration, about one fourth of the township, free from any charge or deduction on account of settlers' claims, when the College was originally entitled to it under the resolve only as burdened with that charge, and has paid nothing since to relieve the land from it ”

“ The fifth section authorized the commissioners to take a commutation from grantees of any settling duties they were held to perform.
The resolve, granting this township, reduced the number of settlers from fifty to thirty; and, instead of reserving the right to the commissioners to execute such deeds, provided, that the grantees might give security to the State to do it, and perform the other duties, as to the settlers, under the before-mentioned act. ”

“ Were it necessary to give validity to the clause, and it would be bad either as a reservation, exception, or condition, it would be no unusual stretch of construction to consider it as a covenant to stand seized to the use of the settlers, and in this way reach a like result. Jackson v. Swart, 20 Johns. R. 87; Bedel's case, 7 Coke, 40.
A deed is, if possible, to be made operative in some way; and the construction should be liberal, in order to effect that object, and enforce the original design. ”

“ He also offered in evidence and read to the jury, a deed from said Samuel T. Mallett to David Mallett, the plaintiff, dated August the 12th, 1829, purporting to convey to the said David two certain lots, being the demanded premises, a copy of which is hereunto annexed, marked H, and makes a part of this bill of exceptions. And the defendant, to maintain the issue on his part, offered in evidence, and read to the jury, a resolve of the Commonwealth of Massachusetts, dated the 19th day of February, 1805, and another resolve of the same Commonwealth, dated the 27th day of January, 1820 ”

“ 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. ”

“ By proceeding afterwards to get the partition made by the proprietors, and to execute the deed to David Mallett, so as to perform his duty in respect to this condition, he did not, as seems to be contended, reduce further the value of the land to himself or mortgagees, or part with any portion of it not before subject to be thus taken. ”

“ Again, it was a leading principle of public policy with the State, in order to increase its population and wealth, that settlers should be placed upon the land at an early day, and, as an inducement for them to come, should have lots for a very small consideration. ”

“ 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. ”

“ Fuller, 23 Pick. 9; 2 Greenleaf, 132. The mortgagor was in charge of the land, and was still the owner, for all purposes except the security of the creditor. That security is not lessened by what he did in this respect. ”