Penn v Lord Baltimore

JurisdictionEngland & Wales
Judgment Date15 May 1750
Date15 May 1750
CourtHigh Court of Chancery

English Reports Citation: 27 E.R. 1132

HIGH COURT OF CHANCERY

Penn
and
Lord Baltimore

S. C. 1 Wh. & T. L. C. (7th Ed.) 755. See Ewing v. Orr Ewing, 1883, 9 App. Cas. 40, 48; Commissioners of Inland Revenue v. Angus, 1889, 23 Q. B. D. 596.

penn v. lord baltimore, May 15,1750. fs. 0. 1 Wh. &. T. L. C. (7th Ed.) 755. See Swing v. Orr-Ewing, 1883, 9 App. Cas. 40, 48 ; Commissioners of Inland Revenue v. Angus, 1889, 23 Q. B. D. 596.] Specific performance decreed of articles executed in England concerning boundaries of two provinces in America. (See in Barclay v. Russell, 3 Ves. 491, &c., and Nabob of Arcot v. East India Company, 1 Ves. jun. 371, 2. 2 Ves. jun. 56 ; and Earl Derby v. Duke of Athol, 1 Ves. sen. 202, and Supplement, p. 111.) Agreement to settle disputes.. (See Cory v. Cory, 1 Ves. sen. 19. Taylour v. Rochford, 2 Ves. sen. 284. Stapiltonv. Stapilton, 1 Atk. 2. Frank v. Frank, 1 Ch. Ca. 85., Cann v. Cann, 1 P. W. 723, 727. Pullen v. Beady, 2 Atk. 590. Goilman v. Battinson, 1 Vern. 48 ; and Stockley v. Stockley, I Ves. and B. 23, 30.) Process on a decree for possession of lands. (Vide 1 Ves. sen. 454 ; and Supplement, p. 194.) The bill was founded on articles, entered into between the plaintiffs and defendant 10 May 1732, which articles recited several matters as introductory to the stipulation between the parties, and particularly letters patent granted 20 June, 2 C. 1, by which 1 VES. SEN. 445. PENN V. BALTIMORE (LORD) 1133 the district, property, and government, of Maryland under certain restrictions is granted to defendant's ancestor his heirs and assigns : farther reciting charters or letters patent in 1681, by which the province of Pensylvania is granted to Mr. William Penn and his heirs; and stating a title to the plaintiffs derived from James Duke of York, to the three lower countries by two feoffments, both bearing date 24 August 1682. The articles recite, that several controversies had bean between the parties concerning the boundaries and limits of these two provinces and three lower counties, and make a particular provision for settling them by drawing part of a circle about the town of Newcastle, and a line to ascertain the boundaries between Maryland and the three lower counties, and a provision in whatever manner that circle and line should run and be drawn ; and that commissioners should do it in a certain limited time, the final time for which was on or before 25 December 1733. There was beside a provision in the articles, that if there should be a want of a Quorum of commissioners meeting at any time, the party by default of whose commissioners the articles could not be carried into execution, should forfeit the penalty of £5000 to the other party : and a provision for making conveyances of the several parts from one to the other in these boundaries, and for enjoyment of the tenants and landholders. The bill was for a specific performance and execution of the articles : what else was in the cause came by way of argument to support, or objection to impeach, this relief prayed. When the cause came on before, it was ordered to stand over, that the Attorney-General should be made a party ; who now left it [445] to the court to make a decree, so as not to prejudice the right of the crown. The first objection for defendant was, that this court has not jurisdiction nor ought to take recognizance of it; for that the jurisdiction is in the King and council. Second objection, that if there is not an absolute defect of jurisdiction in this court, yet being a proprietary government and feudary seigniory held of the crown, who has the sovereign dominion, the parties have no power to vary or settle the boundaries by their own act; for such agreement to settle boundaries and to convey in consequence, amounts to an alienation, which these lords proprietors cannot do : but supposing they may alien entirely, they cannot alien a parcel, as that is dismembering ; for which there is a rule in the feudal books concerning Feuda indivisibilia. Thirdly, this agreement ought not to be carried into execution by this court; as it affects the estates, rights and privileges of the planters, tenants and inhabitants within the district, and the tenure and law by which they live, without their consent. Fourthly, supposing all this answered, yet this agreement is not proper to be estab lished from the general nature and circumstances. First, as it is merely voluntary, and the court never decrees specifically without a consideration. Secondly, as the time for performance is lapsed. Thirdly, that these articles are in nature of submission to arbitration, which cannot be supplied by interposition and act of this court. Fourthly, that defendant was imposed on or surprized in making this agreement. Fifthly, that if there was no imposition or fraud, defendant grossly mistook his original right; and under that mistake and ignorance, the articles were founded and framed. Sixthly, the agreement in some material parts is so uncertain, that it cannot be decreed with certainty according to the intent of the parties, for that no centre is fixed ; without , which it is impossible to make a circle : nor is it sufficiently described, whether it should be a circle with a radius of twelve miles or only a periphery of twelve miles. Seventhly, there is a covenant for mutual conveyances; whereas the plaintiffs have no estates in the lower counties, so as to make an effectual conveyance to defendant; and an agreement must be decreed entirely or not at all; on the plaintiff's own shewing the legal estate and property is in the crown : so that at most they have but an equitable right, in which the crown is trustee ; and then this court cannot decree a con-[446]-veyance. In Reeve v. Attorney-General, 1741, lands were devised to a wife, and after her death to be sold, and the money to be divided among the plaintiffs : the testator died without heirs - so that the legal interest in the estate descended to the crown, but with a trust to be sold. On a bill to have the will established, and to hold against the crown, or the lands sold, His Lordship dismissed the bill; and said, where the crown was trustee* the court has no jurisdiction to decree a conveyance ; but they must go to a petition of right. (See Mitford, 29.) Eighthly, this court cannot make an effectual decree in the cause, nor enforce the execution of their own judgment. : Lord Chancellor. I directed this cause to stand over for judgment, not so much- 1134 PENN V. BALTIMORE (LORD) 1VES. SEN. 447. from any doubt of what was the justice of the case, as by reason of the nature of it, the great consequence and importance, and the great labour and ability of the argument on both sides ; it being for the determination of the right and boundaries of two great provincial governments and three counties; of a nature worthy the judicature of a Roman senate rather than of a single judge : and my consolation is, that if I should err in my judgment, there is a judicature equal in dignity to a Roman senate that will correct it. It is unnecessary to state the case on all the particular circumstances of evidence ; which will fall in more naturally, and very intelligibly, under the particular points arising in the cause. The relief prayed must be admitted to be the common and ordinary equity dispensed by this court; the specific performance of agreements being one of the great heads of this court, and the most useful one, and better than damages at law, so far as relates to the thing in specie ; and more useful in a case of this nature than in most others ; because no damages in an action of covenant could be at all adequate to what is intended by the parties, and to the utility to arise from this agreement, viz. the settling and fixing these boundaries in peace, to prevent the disorder and mischief, which in remote countries, distant from the seat of government, are most likely to happen, and most mischievous. Therefore the remedy prayed by a specific performance is more necessary here than in other cases : provided it is proper in other respects : and the relief sought must prevail, unless sufficient objections are shewn by defendant; who has made many and various for that purpose. First, the point of jurisdiction ought in order to be considered : and though it comes late, I am not unwilling to consider it. To be sure a plea to the jurisdiction must be offered in the first instance, and put in primo die ; and answering submits to the jurisdiction : much more when there is a proceeding to hearing on the merits, which would be conclusive at common law : yet a court of equity, which can exercise a more liberal discretion than common law courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree, than where a plain want of equity appears. It is certain, that the original jurisdiction in cases of this kind relating to boundaries between provinces, the dominion, and proprietary government, is in the King and council: and it is rightly compared to the cases of the ancient Commotes and Lordships Marches in Wales; in which if a dispute is between private parties [447] it must be tried in the Commotes or Lordships; but in those disputes, where neither had jurisdiction over the other, it must be tried by the King and council; and the King is to judge, though he might be a party ; this question often arising between the crown and one Lord-Proprietor of a province in America : so in...

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