_ smvnm v. wsncn. 33
that of the oihcers of the   in determining a contest before
them, and should receive the same consideration when questioned in
the courts. Now, there is no such fraud alleged or pretended as
would vitiate the decision of the commissioners in this case. So far
as appears, Nancy did nothing to prevent a full and fair hearing of
the matter by the commissioners, or to hinder or prevent the plaintiff
from presenting his claim to them in the best possible light. Pre-
sumably, the facts concerning the alleged rights of the adverse appli-
cants were presented to the commissioners as here stated, and there,
as here, there being no dispute about them, they, as a question of law,
decided the contest in favor of Nancy. And now, whether the matter
of law was correctly decided by them is the only question in this case.
It is admitted that Nancy was the owner of the adjacent highland,
but it is claimed that the tide land was "held" by the plaintiff under
a deed, not from Nancy, but from James Welch, under whom, it is
claimed, she "held" the highland; and therefore her right to pur-
chase was subordinate, under the act, to that of the plaintiff. The
argument in support of this proposition is that Welch, having, in
March, 1850, quitclaimed the tide blocks 111 and 145 to the plain-
til}, and the latter having, in February, 1860, at the instance and
request of said Welch, and upon a consideration moving from him,
conveyed the blocks 5 and 13 to Nancy, therefore Nancy "held" the
same under the said Welch, the same person under whom the plain-
tiff “held" the tide land included in the quitclaim of 1850. Leaving
out of consideration the fact that neither Shively nor Welch ever
had any right to or interest in this land, or any right to purchase the
same, until and except for the act of 1872, and that their quitclaims
of 1850 did not estop either of them from asserting and maintaining,
as against the other, any after-acquired estate or interest in them, or
right to purchase the same from the state, (Bawle, Cov. 409; Van
Rensselaer v. Kearney, 11 How. 322; Fields v. Squires, 1 Deady, 379;
Lownsclale v. Portland, Id._15,) it is very clear that Nancy Welch
never "he1d" the blocks 5 and 13 under her husband, James Welch; »
but I cannot rest this conclusion upon the argument made in its sup-
port by the counsel for the defendants. That argument is this:
James Welch, at the date of the conveyances to him and his wife, in
1860, was a "settler" on the premises, under the donation act, and
in the compromise then made between himself and Shively, in which
he abandoned his claim to be such "settler," the one-half of the land
and blocks conveyed by Shively, in consideration of such abandon-
ment, was conveyed to Nancy, because, as Welch’s wife, she was
jointly interested with him in the land upon which he was a "settler"
under the donation act, and therefore the consideration for the con-
veyance from Shively to her moved from her, and not her husband,
whereby she "holds" under the former, and not the latter.
But there is no warrant upon the facts stated in the bill, particu-
larly when considered in the light of contemporaneous history, for
v.20,no.1—-3