Marshall, Ch. J.,
delivered the opinion of the court as follows :— L
The questions which occurred in this case, in the circuit court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by the legislature of that state, entitled “ an act for the sale-of [40]*40the vacant lands within this commonwealth.” The 9th section of that act, on which the case principally depends, is in these words, “ and be it further enacted,” &c.
The questions to be considered, relate particularly to the proviso of this section; but to construe that correctly, it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant, before the title to the lands described therein shall vest in him.
Two classes of purchasers are contemplated. The one has already performed every condition of the sale, and is about to pay the consideration-money ; the other pays the consideration-money, in the first instance, and is afterwards to perform the conditions. They are both described in the same sentence, and from each an actual settlement is required as indispensable to the completion of the title.
In describing this actual settlement, it is declared, that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, “ by clearing, fencing and cultivating at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing, or causing a family to reside thereon for the space of five years next following his first settling of the same, if he or she shall so long live.”
*The manifest impossibility of completing a residence of five years, within the space of two years, would lead to an opinion, that the part of the description relative to residence, applied to those only who had performed the condition, before the payment of the purchase-money ; and not to those who were to perform it afterwards. But there are subsequent parts of the act which will not admit of this construction, and consequently, residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement.
The law requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language to be rendered intelligible. This change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading, suggested by the counsel for the plaintiff, appears to be most reasonable, and to comport best with the general language of the section, and with the nature of the subject. It is by changing the participle into the future tense of the verb, and instead of “ and residing, or causing a family to reside thereon,” reading “ and shall reside,” &c. The effect of this correction of language will be to destroy the repugnancy which exists in the act as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that in the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition ; the settlement to be made within the space of two years from the date of the warrant, and the residence in five years from the commencement of the settlement.
This construction is the more necessary, because the very words “ such actual settlement and residence,” which prove that residence is required from the warrantee, prove also that settlement and residence are, in contemplation •of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a ^settlement, no •* more requires a residence of five, than a residence of five hundred [41]*41years; and, of consequence, it is much more reasonable to understand the .legislature as requiring the residence for that term, in addition to a settlement, ■than as declaring it to be a component part of a settlement.
The meaning of the terms settlement and residence being understood, the ■court will proceed to consider the proviso. That part of the act treats of an .actual settler (under which term is intended as well the person who makes •his settlement the foundation of his claim to a warrant, as a warrantee who had made an actual settlement in performance of the conditions annexed to his purchase), and of “any grantee in any such original or succeeding warrantwho must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced, are 'brought together in the same sentence, and terms are used appropriate to the •situation of each, but not applicable to both. Thus, the idea of “ an actual settler,” “ prevented from making an actual settlement,” and after “ being ■driven therefrom,” “ persisting in his endeavors ” to make it, would be absurd. To apply to each class of purchasers all parts of the proviso, would involve a contradiction in terms. Under such circumstances, the plain and .natural mode of construing the act, is, to apply the provisions distributively to the description of persons to whom they are adapted, reddendo singula singulis. The proviso then would read thus : “ Provided always, nevertheless, that if any such actual settler shall be driven from his settlement, by force of arms of the enemies of the United States ; or any grantee, in any ■such original or succeeding warrant, shall by force of arms of the enemies of the United States, be prevented from making such actual settlement, and 'shall persist in his endeavors to make such actual settlement as aforesaid, ■then, in either case, he and his heirs shall be entitled to have and to hold the ;said lands, in the *same manner as if the actual settlement had been .made and continued. L
The two cases are, the actual settler, who has been driven from his settlement, and the warrantee, who has been prevented from making a settlement, but has persisted in his endeavors to make one. It is perfectly clear, •that in each case, the proviso substitutes something for the settlement to be made within two years from the date of the warrant, and for the residence •to continue five years from the commencement of the settlement, both of which were required in the enacting clause. What is that something? The proviso answers, that in the case of an “ actual settler,” it is his being “ driven from his settlement by force of arms of the enemies of the United States,” and in case of his being a grantee of a warrant, not having .-settled, it is “ persisting in his endeavors to make such actual settlement.” In neither case, is residence, or persisting in his endeavors at residence, re■quired. Yet the legislature had not forgotten, that by the enacting clause, residence was to be added to settlement; for in the same sentence, they say, that the person who comes within the proviso shall hold the land, “ as if the .actual settlement had been made and continued.”
It is contended, on the part of the defendant, that as the time during which persistence shall continue is not prescribed, the person claiming the land must persist until he shall have effected both his settlement and residence, as required by the enacting clause of the act. That is, that the proviso dispenses with the time, and only with the time, during which the con[42]*42dition is to be performed. But the words are not only inapt for the expression, of such an intent; they absolutely contradict it.
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Marshall, Ch. J.,
delivered the opinion of the court as follows :— L
The questions which occurred in this case, in the circuit court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by the legislature of that state, entitled “ an act for the sale-of [40]*40the vacant lands within this commonwealth.” The 9th section of that act, on which the case principally depends, is in these words, “ and be it further enacted,” &c.
The questions to be considered, relate particularly to the proviso of this section; but to construe that correctly, it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant, before the title to the lands described therein shall vest in him.
Two classes of purchasers are contemplated. The one has already performed every condition of the sale, and is about to pay the consideration-money ; the other pays the consideration-money, in the first instance, and is afterwards to perform the conditions. They are both described in the same sentence, and from each an actual settlement is required as indispensable to the completion of the title.
In describing this actual settlement, it is declared, that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, “ by clearing, fencing and cultivating at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing, or causing a family to reside thereon for the space of five years next following his first settling of the same, if he or she shall so long live.”
*The manifest impossibility of completing a residence of five years, within the space of two years, would lead to an opinion, that the part of the description relative to residence, applied to those only who had performed the condition, before the payment of the purchase-money ; and not to those who were to perform it afterwards. But there are subsequent parts of the act which will not admit of this construction, and consequently, residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement.
The law requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language to be rendered intelligible. This change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading, suggested by the counsel for the plaintiff, appears to be most reasonable, and to comport best with the general language of the section, and with the nature of the subject. It is by changing the participle into the future tense of the verb, and instead of “ and residing, or causing a family to reside thereon,” reading “ and shall reside,” &c. The effect of this correction of language will be to destroy the repugnancy which exists in the act as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that in the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition ; the settlement to be made within the space of two years from the date of the warrant, and the residence in five years from the commencement of the settlement.
This construction is the more necessary, because the very words “ such actual settlement and residence,” which prove that residence is required from the warrantee, prove also that settlement and residence are, in contemplation •of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a ^settlement, no •* more requires a residence of five, than a residence of five hundred [41]*41years; and, of consequence, it is much more reasonable to understand the .legislature as requiring the residence for that term, in addition to a settlement, ■than as declaring it to be a component part of a settlement.
The meaning of the terms settlement and residence being understood, the ■court will proceed to consider the proviso. That part of the act treats of an .actual settler (under which term is intended as well the person who makes •his settlement the foundation of his claim to a warrant, as a warrantee who had made an actual settlement in performance of the conditions annexed to his purchase), and of “any grantee in any such original or succeeding warrantwho must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced, are 'brought together in the same sentence, and terms are used appropriate to the •situation of each, but not applicable to both. Thus, the idea of “ an actual settler,” “ prevented from making an actual settlement,” and after “ being ■driven therefrom,” “ persisting in his endeavors ” to make it, would be absurd. To apply to each class of purchasers all parts of the proviso, would involve a contradiction in terms. Under such circumstances, the plain and .natural mode of construing the act, is, to apply the provisions distributively to the description of persons to whom they are adapted, reddendo singula singulis. The proviso then would read thus : “ Provided always, nevertheless, that if any such actual settler shall be driven from his settlement, by force of arms of the enemies of the United States ; or any grantee, in any ■such original or succeeding warrant, shall by force of arms of the enemies of the United States, be prevented from making such actual settlement, and 'shall persist in his endeavors to make such actual settlement as aforesaid, ■then, in either case, he and his heirs shall be entitled to have and to hold the ;said lands, in the *same manner as if the actual settlement had been .made and continued. L
The two cases are, the actual settler, who has been driven from his settlement, and the warrantee, who has been prevented from making a settlement, but has persisted in his endeavors to make one. It is perfectly clear, •that in each case, the proviso substitutes something for the settlement to be made within two years from the date of the warrant, and for the residence •to continue five years from the commencement of the settlement, both of which were required in the enacting clause. What is that something? The proviso answers, that in the case of an “ actual settler,” it is his being “ driven from his settlement by force of arms of the enemies of the United States,” and in case of his being a grantee of a warrant, not having .-settled, it is “ persisting in his endeavors to make such actual settlement.” In neither case, is residence, or persisting in his endeavors at residence, re■quired. Yet the legislature had not forgotten, that by the enacting clause, residence was to be added to settlement; for in the same sentence, they say, that the person who comes within the proviso shall hold the land, “ as if the .actual settlement had been made and continued.”
It is contended, on the part of the defendant, that as the time during which persistence shall continue is not prescribed, the person claiming the land must persist until he shall have effected both his settlement and residence, as required by the enacting clause of the act. That is, that the proviso dispenses with the time, and only with the time, during which the con[42]*42dition is to be performed. But the words are not only inapt for the expression, of such an intent; they absolutely contradict it.
!!Tf the proviso be read so as to be intelligible,' it requires nothing from the actual settler who has been driven from his settlement. He is not to-persist in his endeavors at residence, or, in other words, to continue his settlement, but is to hold the land. From the warrantee who has been prevented from making a settlement, no endeavors at residence are required. He is to “ persist in his endeavors,” not to make and to continue such actual settlement, but “to-make such actual settlement as aforesaid.” And if he does persist in those endeavors, he is to hold the land, “ as if the actual settlement had been made- and continued.” The construction of the defendant would make the legislature say, in substance, that if the warrantee shall persist in endeavoring to accomplish a.particular object, until he does accomplish it, he should hold the land, as if he had accomplished it. But independent of the improbability that the intention to dispense only with the time in which the condition-was to be performed, would be expressed in the language which has been noticed, there are terms used, which seem to restrict the time during which a persistence in endeavors is required. The warrantee is to persist in his-endeavors “ to make such actual settlement as aforesaid.” Now, “ such actual settlement as aforesaid,” is an actual settlement within two years from the date of the warrant. As it could only be made within two years, a persistence in endeavoring to make it, could only continue for that time.
If, after being prevented from making an actual settlement and persisting in endeavors, those endeavors should be successful, within the two years after which the person should be driven off, it is asked, what would be his-situation ? The answer is a plain one. By persisting, he has become an actual settler ; and the part of the proviso which applies to actual settlers protects him. If, after the two years, he should be driven off, he is still, protected. The application of external violence dispenses with residence. The court feels itself bound *to say so, because the proviso contains a substitute, which, in such a state of things, shall be received instead, of a performance of the conditions required by the enacting clause ; and of' that substitute, residence'forms no part.
In a great variety of forms, and with great strength, it has been argued,. that the settlement of the country was the great object of the act; and that the construction of the plaintiff would defeat that object. That the exclusive-object of an act to give lands to settlers, would be the settlement of a country, will be admitted ; but that an act to sell lands to settlers, must have for its-exclusive object the settlement of the country, cannot be so readily conceded. In attempting to procure settlements, the treasury was certainly not forgotten. How far those two objects might be consulted, or how far the one yielded to the other, is only to be inferred, from the words in which the legislative intention had been expressed. How far the legislature may have - supposed the peopling of the district in question to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by their own language. At any rate, if the legislature has used words, dispensing with residence, it is not for the court to say, they could not intend it,. unless there were concomitant expression, which should explain those words, in a manner different from their ordinary import.
[43]*43There are other considerations in favor of the construction to which the-court is inclined. This is a contract; and although a state is a party, it-ought to be construed according to those well-established principles which regulate contracts generally. The state is in the situation of a person who-holds forth to the world the conditions on which he is willing to sell his-property. *If he should couch his propositions in such ambiguous terms, that they might be understood differently, in consequence of which sales were to be made, and the purchase-money paid, he would come-with an ill grace into court, to insist on a latent and obscure meaning, which should give him back his property, and permit him to retain the purchase-money. All those principles of equity, and of fair dealing, which constitute-the basis of judicial proceedings, require that courts should lean against such a construction.
It being understood that the opinion of the court on the two first questions, has rendered a decision of the third unnecessary, no determination-respecting it has been made.
It is directed, that the following opinion be certified to the circuit court-
Certificate of the Opinion. — 1st. That it is the opinion of this court, that under the act of the legislature of Pennsylvania, passed the 3d day of April, A. D. 1792, entitled “ an act for the sale of the vacant lands within this commonwealth,” the grantee, by a warrant of a tract of land lying north and west of the rivers Ohio and Allegheny and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from settling- and improving the said land, and from residing thereon from the 10th of' April 1793, the date of the said warrant, until the 1st of January 1796 ; but who, during the said period persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement as the enacting clause of the 9th section of the said law prescribes to vest a title in the said grantee.
2d. That it is the opinion of this court, that a warrant of a tract of land lying north and west of the rivers Ohio and Allegheny and Conewangocreek, granted in the year 1793, under and by virtue of an act of the legislature of Pennsylvania, entitled “ an act for selling the vacant lands in this commonwealth,” to a person, who, by force of arms of the enemies of the-United States, was *prevented from settling and improving the said p-land, and from residing thereon from the date of the said warrant until *- the 1st of January 1796, but who, during the said period, persisted in his-endeavors to make such settlement and residence, vests in such grantee a. fee-simple in the said land, although, after the said prevention ceased, he did not commence, and, within the space of two years thereafter, clear, fence and cultivate at least two acres for every hundred acres contained in his survey for the said land, and erect thereon a messuage for the habitation of man, and reside, or cause a family to reside thereon, for the space of five years next following his first settling of the same, the said grantee being yet in full life.1