#### Dorothy Cushing and Others *versus*Elijah Hackett.

A judgment was rendered m this Court, upon an inquest of office in behalf of the commonwealth, against the proprietors of a township granted by the govern nient of the late province, assigning certain limits to the township, with a proviso that the proprietors should release their right to such lands within the said limits as were actually settled upon before a certain time to the settlers thereon, &e. It was bolden, that a settler, before the said time, on lands which had been assigned to individual proprietors prior to said judgment, was witmn the proviso.

Entry *sur disseisin.*The demandants claimed an undivided third part of a certain tract of land in *Minott,*(formerly part of Bakerstown.)

A new trial being had, (vide vol. x. p. 164,) at the last October term, before *Thatcher,*J.,a verdict was returned for the demandants, subject to the opinion of the Court upon the judge’s report of the facts in evidence.

The demandants proved a grant and confirmation of the town of *Bakerstown,*(mentioned in the preceding case;) that, subsequently to the said grant and confirmation, *viz.,*in August, 1777, the proprietors of said *Bakerstown*caused their head line to be surveyed by *Benjamin True;*that, in October, 1774, a division was made between the said proprietors on the one part, and *Jonathan Bagley, Samuel Gerrish,*and *Moses Little,*on the other part; that the demanded premises are parcel of the land assigned in said division to the said *Bagley*and others, who immediately entered and took possession under the said division ; and that the demand-ants are heirs of the said *Bagley.*

The tenant produced in evidence a copy of a judgment of this Court, rendered in July, 1794, on an inquest of office [ * 203 ] * brought by the commonwealth against the proprietors of *Bakerstown;*by whicli certain limits were assigned to the said grant, with a proviso annexed in the following words, *viz.: “ Provided*that the proprietors of *Bakerstown*aforesaid release all their right, title, and interest, to such part of the lands within the said lines as were actually settled upon before the said *Davis*run the said head line [December, 1780] to such persons as were so actually settled thereon, or to their heirs or assigns.” He also proved that one *Job Tucker*was in possession of the demanded premises in the year 1779, having built a house and made other improvements thereon ; under whom the tenant derived a title by sundry mesne conveyances.

To rebut the title thus set up by the tenant, the demandants proved several conversations to have taken place between the sai¿d *189
      *Job Packer,*while he occupied the demanded premises, and the above-named *Moses Little,*in which *Pucker*expressed a desire to purchase the lot on which he was settled; and if he should not be able to purchase it, he promised to leave it in good order, and hoped he should not be turned off from it.

*Whitman,*for the tenant,

contended that the title of the proprietors of *Bakerstown*was now wholly to be derived from the judgment of this Court in 1794; and this was on a condition that they should release to settlers, such as the tenant or those under whom he claims, the lands in their possession. The proprietors cannot, under that judgment, have any title or claim to the land now demanded, more than if it were altogether beyond the exterior limits of their grant. The demandants, as the assigns of the proprietors of *Bakerstown,*are bound by that judgment, which is still in force, and the demanded premises were *excepted*out of the lands assigned to the proprietors.

*Longfellow,*for the demandants,

argued that the original grant to the proprietors of *Bakerstown*was still in force, and the title to the lands, not taken away by' the judgment, * was [ * 204 ] holden under that grant, and not under the judgment.

The Court had no authority to annex such a condition to the judgment. But allowing the judgment and the condition good, still the present tenant has no right to avail himself of them. They were intended to quiet persons claiming under other grants, or under a title adverse to the proprietors of *Bakerstown ;*not mere settlers or intruders, without pretence of right, as *Hackett*confessed himself to be. Further, these lands were divided and assigned to individual proprietors long before *Hackett’s intrusion;*and therefore the proprietors, as a corporate body, could not release to him or his assigns.

*Per Curiam.*

The title of the demandants to the land in question is to be referred to the judgment rendered upon the inquest of office: the condition annexed to that judgment was binding upon the proprietors of *Bakerstown,*and all claiming under them. *Hackett*was a settler within the terms and meaning of that condition, and the present tenant, as his assignee, is entitled, as against the demandants, to the land demanded. The conversation between *Little*and *Hackett*had no effect whatever to affect the tenant’s title under the said condition. The verdict is set aside, and a new trial is granted.