Pakker, C. J.
One question which has been made in this case, is whether the land described in the deed from the plaintiff was at the time within the limits of this state. Perhaps the limits of the earlier grants might not embrace the territory in question, and the provincial authorities could not have exercised any jurisdiction over it; but upon the revolution, and the treaty which followed it, defining the boundary line between the Canadas and the states, this territory was srrpposed, and must be deemed by us, to have fallen within the limits of the state of New-Hampshire, as the United States have never claimed title to any tract of land lying between this state and Canada; and the state itself, after much investigation upon the subject, asserted a title and jurisdiction in 1820, by a resolution directing the attorney-general to proceed against intruders; and again in 1824, by an express declaratory act. There has been no pretence of any grant by which the state acquired a title subsequent to the separation from Great Britain; and these acts must be taken and deemed to be an assertion of title, and a right of jurisdiction, from that period; and the question, therefore, whelh[16] er the land is within the limits of the state, is here no longer open. We cannot undertake to limit the jurisdiction which the government has thus asserted, by a decision that the boundaries of the state do not extend so far.
The provincial legislature of New-Hampshire, as early as 1719, passed an act to prevent, and make void, purchases from the Indians without the license or approbation of the general assembly. Upon the revision of the laws, in 1792, this was repealed, and no provision appears to have been substituted, probably because, upon the organization of the government of the United States, that subject was more particularly within the control of the general government. As early as 1790, Congress passed an act providing that no sale of lands made by Indians, or any nation of Indians, within the United States, should be valid unless made and executed at some public treaty, held under the authority of the United States. This act expired by its own limitation in March, 1793, but another act was then passed, containing a similar prohibition, and making it a misdemeanor, punishable by fine and imprisonment, for any person, not employed by the United States, to treat for a purchase in such case. Divers acts have been passed from time to time, since that period.
It has been controverted in this case whether the act of Congress applies to lands within the limits of the original thirteen states; and whether it applies to purchases from Indians residing without the jurisdiction of the United States. These matters have no bearing upon this case, except as they relate to the question, whether the supposed purchase by the plaintiff, from the St. Francis Indians, was or was not prohibited by the laws of the United States as a misdemeanor. But in the view we have taken of the case, this has become immaterial. If the statute then in force, prohibiting purchases from the Indian tribes, was not applicable to that purchase, then the act of the plaintiff, in taking his deed, might have been merely nugatory. And if, on the other hand, such purchase was a misdemeanor, subjecting the [17] plaintiff to punishment, and making the deed a nullity, and not even color of title : still we are of opinion that a possession, taken after such purchase, would be no worse than a possession taken without any purchase ; that it would he an intrusion upon lands, the title of which was in the state, subject to the Indian right of occupancy ; and. that for such intrusion the party would be liable to answer to the state : but such possession would so far avail against other persons, that no one having no better right could eject the party from the possession thus acquired. For the act of unlawfully making the purchase, he would be liable to be punished ; the contract would be void ; the possession taken afterwards would be an unlawful intrusion, upon which the government might proceed to remove him, but it would be nothing more than that. It would not authorize others to treat him as an outlaw, or expel him by force. The possession thus acquired he might hold, except against the Indians, or the state, or the grantees of the latter. And such possession, if it was not abandoned, might as well be the subject of sale and transfer, as any other possession acquired by intrusion, ox trespass. If any one saw fit to purchase from such occupant, the deed would convey a seizin against all persons but those having better title, (to wit., the Indians and the state) the same as in any other case of a conveyance by a disseizor. Such contract would be no more tainted with the prior illegal proceeding, than the latter would be tainted or affected by the disseizin.
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Pakker, C. J.
One question which has been made in this case, is whether the land described in the deed from the plaintiff was at the time within the limits of this state. Perhaps the limits of the earlier grants might not embrace the territory in question, and the provincial authorities could not have exercised any jurisdiction over it; but upon the revolution, and the treaty which followed it, defining the boundary line between the Canadas and the states, this territory was srrpposed, and must be deemed by us, to have fallen within the limits of the state of New-Hampshire, as the United States have never claimed title to any tract of land lying between this state and Canada; and the state itself, after much investigation upon the subject, asserted a title and jurisdiction in 1820, by a resolution directing the attorney-general to proceed against intruders; and again in 1824, by an express declaratory act. There has been no pretence of any grant by which the state acquired a title subsequent to the separation from Great Britain; and these acts must be taken and deemed to be an assertion of title, and a right of jurisdiction, from that period; and the question, therefore, whelh[16] er the land is within the limits of the state, is here no longer open. We cannot undertake to limit the jurisdiction which the government has thus asserted, by a decision that the boundaries of the state do not extend so far.
The provincial legislature of New-Hampshire, as early as 1719, passed an act to prevent, and make void, purchases from the Indians without the license or approbation of the general assembly. Upon the revision of the laws, in 1792, this was repealed, and no provision appears to have been substituted, probably because, upon the organization of the government of the United States, that subject was more particularly within the control of the general government. As early as 1790, Congress passed an act providing that no sale of lands made by Indians, or any nation of Indians, within the United States, should be valid unless made and executed at some public treaty, held under the authority of the United States. This act expired by its own limitation in March, 1793, but another act was then passed, containing a similar prohibition, and making it a misdemeanor, punishable by fine and imprisonment, for any person, not employed by the United States, to treat for a purchase in such case. Divers acts have been passed from time to time, since that period.
It has been controverted in this case whether the act of Congress applies to lands within the limits of the original thirteen states; and whether it applies to purchases from Indians residing without the jurisdiction of the United States. These matters have no bearing upon this case, except as they relate to the question, whether the supposed purchase by the plaintiff, from the St. Francis Indians, was or was not prohibited by the laws of the United States as a misdemeanor. But in the view we have taken of the case, this has become immaterial. If the statute then in force, prohibiting purchases from the Indian tribes, was not applicable to that purchase, then the act of the plaintiff, in taking his deed, might have been merely nugatory. And if, on the other hand, such purchase was a misdemeanor, subjecting the [17] plaintiff to punishment, and making the deed a nullity, and not even color of title : still we are of opinion that a possession, taken after such purchase, would be no worse than a possession taken without any purchase ; that it would he an intrusion upon lands, the title of which was in the state, subject to the Indian right of occupancy ; and. that for such intrusion the party would be liable to answer to the state : but such possession would so far avail against other persons, that no one having no better right could eject the party from the possession thus acquired. For the act of unlawfully making the purchase, he would be liable to be punished ; the contract would be void ; the possession taken afterwards would be an unlawful intrusion, upon which the government might proceed to remove him, but it would be nothing more than that. It would not authorize others to treat him as an outlaw, or expel him by force. The possession thus acquired he might hold, except against the Indians, or the state, or the grantees of the latter. And such possession, if it was not abandoned, might as well be the subject of sale and transfer, as any other possession acquired by intrusion, ox trespass. If any one saw fit to purchase from such occupant, the deed would convey a seizin against all persons but those having better title, (to wit., the Indians and the state) the same as in any other case of a conveyance by a disseizor. Such contract would be no more tainted with the prior illegal proceeding, than the latter would be tainted or affected by the disseizin.
If, then, the plaintiff had not even color of title by his deed, but had entered and been permitted to remain, and the defendants, knowing all the facts of the case, saw fit to purchase his right, such as it was, without any deception, or fraud, or misconduct of the plaintiff in the making of this latter contract—if, for instance, they took by fair bargain a deed of all his right, and title, hoping that they might thereby obtain a confirmation from the state, as had been the case in some instances, previously, in relation to the possessions [18] of actual settlers—there is no sound reason why they should now turn round, and attempt to avoid the performance of that contract, because the plaintiff had at a previous time received a deed from certain Indians, contrary to law. If his possession may be supposed to have been taken in consequence of that, it is not so connected with it that the defendants can thereby annul their subsequent contract. This latter contract is not for the conveyance of an Indian title, but of the right of the plaintiff to the land, such as it existed at the time. If fairly made, and with no sinister intent, it is sufficient to pass a right to occupy so much of the land as the plaintiff possessed, and did not abandon, as against any person who cannot show a better title. 9 N.H. Rep. 168, Gibson vs. Bailey; Ditto 400, Straw vs. Jones. And the covenant in the deed, against all persons claiming by virtue of a title from the plaintiff, may furnish, in such case, a good foundation for the recovery of damages against the plaintiff, if other persons are in possession by virtue of any prior deed from him. Under such circumstances we cannot, as the case stands, hold that this contract was without consideration. The title which the plaintiff quitclaimed may have been of very little value. It may have been a mere possessory title, without any valid evidence of conveyance ; and the possession upon which it is founded may have been abandoned in 1820 or 1821, from an apprehension that the state was about to proceed against the plaintiff as an intruder. The possession may have been resumed, at a later period, from the hope that some person might be induced to purchase the right, rather than from a belief that the state would confirm the possession ; and it may not have been kept up by an actual residence upon the territory, at the time of the sale to the defendants. Still, if all this was known to the defendants, and they saw fit to contract to pay the plaintiff f4-000 for a possession which might avail, as to some portion of the tract, against all persons but those who might claim under a title from the state, (the plaintiff [19] having covenanted against all persons claiming under him) we discover no sound principle upon which we can, hold this contract illegal, and therefore void, or inoperative, for the want of a consideration ; notwithstanding we may be of opinion that the amount thus contracted to he paid exceeded the real value of the subject matter of the sale. Gross inadequacy of consideration may be a strong circumstance to show fraud, and there may be relief against an unconseien-tious bargain, in equity. 2 Ves. Sen. 516, How vs. Weldon; 3 Ves. & Bea. 117, Bowes vs. Heaps. But the parties have the right, and power, to fix the measure of value; and between parties standing on equal ground, in the absence of any attempt at fraud or imposition, or any combination for that purpose, mere inadequacy of consideration is not sufficient to avoid a contract, even in equity. 9 Ves. 246, Coles vs. Trecothick; 3 Ves. & Bea. 188, Western vs. Russell; 1 Swanston 329, Prebble vs. Boghurst; 2 Johns. Ch. Rep. 23, Osgood vs. Franklin.
Judgment for the plaintiff.