Hammond v. Morrison's Lessee

Grason, J., delivered the opinion of the Coui't. The first question presented upon this appeal, arises upon the construction of the 2d section of the Act of 1781, chapter 20, and the 10th and 13th sections of the Act of 1788, chapter 44. The 2d section of the Act of 1781 is rather obscure in its phraseology, but it appropriated all the lands within the State, in Washington county, westward of Fort Cumberland, to discharge the engagement of the State to the officers and soldiers of the Revolution, and, after the completion of that engagement, to the use of the public, as the General Assembly might direct, excepting, however, the lands on which locations had been made by special warrant, or actual surveys under common warrants, (which warrants and surveys, and the rights resulting therefrom, were, at the time of the passage of the Act, bona fide the property of citizens of the State of Maryland, or some one of the United States,) and for which lands the composition money had been paid; with a proviso, however, that the lands so located, sur ¹⁰⁰ veyed and paid for should not be patented without the further order of the Legislature. At the time of the passage of this Act, the number of the officers and soldiers who were entitled to lands, had not been ascertained.

Under a resolution of the Legislature, passed in 1787, the lands described in the Act of 1781, were surveyed and laid off into lots of fifty acres each, a plat of which was returned, as required by the resolution, by which it appeared that there were four thousand one hundred and sixty-five lots, besides sundry tracts which had then been patented, and that there were six hundred aud thirty-six lots improved and cultivated, and settled by three hundred and twenty-three families. The Act of 1788, chapter 44, was afterwards passed, giving a preference to those settlers to the lots, so occupied by them, upon their making certain payments therefor. Then, after reciting that, from the most accurate account that could be rendered by the Auditor General, there were about two thousand, four hundred and seventy-five soldiers, and one hundred officers entitled to lands under the several Acts of the Legislature theretofore passed, the Act of 1788 provided, that twenty-five hundred and seventy-five of the lots which had been surveyed, and which were situated within certain lines particularly described in the Act of Assembly, should be distributed by lot among the soldiers and officers and their ‘legal representatives, by the commissioners to be thereafter appointed by the Governor and Council, and the 6 th section provided that certain of the remaining lots should be distributed by lot among the officers of the Maryland line. Section 10 provided that the remainder of the lots be sold for any kind of specie certificates of this State, to be paid at the time of the sale.

By section 13, it was enacted, that any of said lands not hereinbefore appropriated, and any other lands in this State then vacant, and to affect which no warrant had issued, should be liable to be taken up in the usual manner by warrant. ¹⁰¹ It was contended by the counsel of the appellants, that all the lots west of Fort Cumberland had been appropriated by the Act of 1781 to a particular object, and that they could not be disposed of in any manner other than by a sale, according to the direction of the 10th section of the Act of 1788. We are satisfied that that section applies only to such of the lots situated within the lines described in the Act, as might remain after the officers and soldiers had received their allotment, and that the 13th section referred to all