The Inhabitants of Mount Washington versus The Inhabitants of Clarksburgh, 19 Pick. 294

Shaw C. J. The only question in this case is, whether Bradford Pollard, the pauper, had a settlement in right of his father, in the town of Clarksburgh. This depends upon the construction of St. 1821, c. 94, which provides, that any person of twenty-one years of age, being a citizen of this or any of the United States, having an estate of inheritance or freehold in any town, &c. and living on the same three years successively, shall thereby gain a settlement in the same. In order to come to a true construction of this act, it may be useful to compare it with that for which it was substituted.

This provision was a substitute for an earlier act, which it repealed, and the effect of which was, to give a settlement in any town to any person, having an estate of inheritance or freehold in the town where he dwelt, of the clear yearly income of three pounds and taking the rents and profits thereof three years successively, whether he lived thereon or not.

The difference between the two provisions will be obvious upon comparison. - In the former case, an estate of a certain clear yearly value was required, but not a residence thereon ; in the latter, a residence on the estate is required, but no provision is made in regard to value..

The obvious policy of the act was, to regard an actual freeholder living on and occupying his own estate, and continuing that residence for a certain length of time, as one of those permanent inhabitants who should be entitled to share with his townsmen, in the benefits of the charity provided by the' public, in case of his standing in need of relief. Taking this to be the policy,, there seems to be no ground for departing from a plain and literal construction of the act.

Had the legislature intended to limit this privilege to those holding a freehold estate of a certain value, it would have been easy so to declare ; and this statute coming in place of one which had required an estate of a particular value, it cannot be presumed that it was overlooked and forgotten. Besides, that it was intended to change the law in this respect, is highly probable, as it is well known,, that the former law was extremely difficult of application and led to frequent and protracted litigation. To ascertain the annual value of a small freehold to a cent, was often an inquiry of extreme difficulty.

The legislature probably went on the ground, that a man who has character and stability enough to acquire an estate of freehold, and reside upon it three years, by which he would be likely to improve it and increase its value, and provide a home for himself and family, would, in general, be a person whom it would be safe and prudent to admit to the benefits of a settlement.

The Court are of opinion, that according to the plain meaning and true construction of this act, a man otherwise qualified acquires a settlement, by having an estate of inheritance or freehold, without regard to its value,, and that it makes no difference, that it is under mortgage. A man in most respects is to be deemed an owner of real estate, although under mortgage. An equity of redemption is deemed to be an estate of inheritance. It is an extreme case where, as in the present, the estate is mortgaged, from the time of 'ts acquisition, for its full value.

But we cannot perceive, that this makes any difference in principle. Thé rule is intended as a general and practical one. A case may be supposed, as where a man purchases a lot of wild land, or land first begun to be cleared and cultivated, and gives a mortgage to the full amount of the purchase money. The prospect, in general, is, that he will become a substantial inhabitant and useful member of the town, in which he thus takes up his abode, although, from the fall of prices or other circumstances, the estate may never be of more value than the incumbrance.

In regard to the other point, the Court are of opinion, that the circumstance, that some relief was afforded to the inhabitant by the town of Clarksburgh, did not prevent him from acquiring a settlement in that town. We think the case is distinguishable from the two cases cited, East Sudbury v. Waltham, 13 Mass. R. 460, and East Sudbury v. Sudbury, 12 Pick. 1.

In both those cases, the pauper had a settlement in other towns in the Commonwealth, when he first became chargeable, and those towns were notified that he had become chargeable, and upon such notice they were bound to remove the paupers to their own towns, and could not afterwards rely upon his residence when supported at their expense, or when they ought to have removed him. But, in the present case, it does not appear that the pauper had a settlement in any other town in the Commonwealth, or that the town of Clarksburgh had a right to call on any other town to remove him.

Whether this distinction would be decisive or not, we are not called on to decide, because we find, that the pauper did reside three years successively, on his freehold estate, without including the time that he received relief as a pauper. This relief was furnished in August 1831, and he continued to reside in the same place till 1835.

The circumstance, that the mortgagee obtained a judgment for possession on his mortgage, he never having taken out execution or entered under it, and the circumstance of the mortgagor’s agreeing to pay rent, in this respect, make no difference, not being, in fact, an interruption of the mortgagor’s residence. Judgment for the plaintiffs.