FAIRFAX'S DEVISEE

v.

HUNTER'S LESSEE

The Court having tákefi time since, last term to consider this case; Story, J.

delivered their opinion as follows, (Mar-shade Ch. J.'and Todd J. being absent.)

The first question is, whether lord Fairfax was pro-proprietor'of, and seized of the soil of the waste and unappropriated lands in the Northern Neck, by virtue of the royal grants, 2 Charles, % and 4 James 2, or whether he had mere seignoral rights therein as lord paramount, disconnected from all interest in the land, except of sale or alienation.

The royal charter expressly conveys all that entire tract, territory, and parcel of land, situate, &c. together with the rivers, islands, woods, timber, &c. mines, quarries of stone and coal, &c. to the grantees and their heirs and assigns, to their only, use and behoof, and to no other use, intent or purpose whatsoever. . i is difficult to conceive terms more explicit than these to vest a title and interest in the soil itself. The land is given, and the exclusive use thereof, and if the' union of the title and the exclusive use do not constitute the dominium directum utile, the complete-and absolute dominion in property, it will not be easy to fix any which shall constitute such dominion.

The ground of the objection would seem to have been, that the royal charter had declared that the grantees should hold of the king as tenants in capite, and that it proceeded to declare that the grantees and their heirs and assigns should have power “ freely and without mo- « Jestation of the king, to give, grant, or by any ways “ or means sell or alien all and singular the granted premises, and every part and parcel thereof, to any “ person or persons being willing to .contract for and « buy the same,” which words were to be considered as restrictive or explanatory of the preceding words of the charter, and as confining the rights granted to the irfere authority to sell or. alien.

But it is very clear that this clause imposes no restriction or explanation of the general terms of the. grant. As the grantees held as tenants in capite of the king, they could not sell or alien without the royal license, and if they did, it was in ancient strictness an absolute forfeiture of the land. 2 Ins. 66; and after the statute 1 Edw. 3 ch. 12, though the forfeiture did not attach, yet a reasonable fine was to be paid to the king upon the alienation. 2 Ins. 67. Staundf. Prer. 27. 2 M. Com. 72. it was not until ten years after the first charter, (12 Ch. 2 ch. 24,) that all fines for. and tenures of the king in capite were abolished. 2 Bl. Com. 77. So that the object of this clause was manifestly to give the royal assent to alienations without the claim of any fine therefor. We are therefore satisfied, that by virtue of the charter and the. intermediate grants, lord Fairfax at Ihe time of his death, had the absolute property of the soil of the land in controversy, and the acts of ownership exercised by him over the whole waste and unappropriated lands, as - ated in the case, vested in him a complete seizin and possession thereof. Even if there had been no acts of ownership proved, we should have been of opinion, that as there was no adverse possession, and tne land was waste and unappropriated, the legal seizin must be, upon' principle, considered as passing with the title.

On this point we have the satisfaction to find, that our view of the title of lord Fairfax seems incidentally confirmed by the opinion of the Court of appeals of Virginia, in Picket v. Dowdell, 2 Wash. 106. Johnson v. Buffington, 2 Wash. 116, and Curry v. Burns, 2 Wash. 121.

The next question is as to the nature and character of the title which Denny Fairfax took by the will of lord Fairfax, he being, at the time of the death of lord Fair-fax, an alien enemy.

It is clear by the common law, that an alien can take lands by purchase, though not by descent $ or in other words he cannot take by the act of law, but he may by the act of the party. This principle has been settled in the year books, and has been uniformly recognized as sound law from that time. 11 Hen. 4, 26. 14, Hen. 4, 20. Co. Litt. 2 5. Nor is there any distinction, whether the purchase be by grant or by devise. In either case, the estate vests in the alien. Vow. Dev. 316, tfc. Park. Rep. 144. €o. Litt. 2 &. not for his own benefit, but for the benefit of the state $ or in tiie language of the ancient law, the alien lias the capacity to take, but not to hold lands, and they may be seized into the hands of the sovereign. 11 II. 4, 26. 14 II. 4, 20. Rut until the are so seized, the alien has complete dominion over the same. He is a good tenant of the freehold in a precipe on a common recovery. 4 Leon 84. Goldsb. 102. 10 Mod. 128. And may convey the same to a purchaser. Sheafe v. O’Neile, 1 Mass. Rep. 256. Though Go. Litt. 52 b, seems to the contrary, yet it must probably mean that he can cónyey á defeasible estate only, which an office found will divest. It seems indeed to have been held, that aii alien cannot maintain a real action for the recovery of lands. Co. Lit. 129 b. Thel. Big. ch. 6. By-er, 2. b. but it does not then follow that he may not defend, in a real action, his title l. the lands against all persons hut the sovereign.

We do not find that in respect to these general rights and .disabilities, there is any admitted difiérem e between alien frunds and alien enemies. During the war, the property of alien enemies.-is subject to confiscation jure belli, and their civil capacity to sue is suspended.' Byer, 3 b. Brandon v. Nesbitt, 6 T. R. 23. 3 Bos. & Pull. 113. 5 Rob. 102 But as to capacity to purchase, no case has been cited in which it has been denied, and in The Attorney General v. Wheeden Yet all admit that the bailiff of the king cannot enter on an alien purchaser until office found. But where a freehold is cast upon the alien by act of law, as by-descent', dower, custody, &c. it is admitted that no inquest of office' is necessary to vest the estate in the king, and he may enter immediately. Whether an alien devisee is to be considered as a purchaser according to the mcaning of that term as applied.to an alien, or whether 1ns estate is to be considered as one of those which are cast, on him by operation of law, is án alternative, either branch of vvliich may be laid hold of with some conñdence. Chief baron Gilbert asserts, without reservation, that a devise to an alien is void. (Gilbert on devises, p. ÍC.J But Jfr, Powell maintains that he takes under it as a purchaser. (Powell on Dev, 317. ; In support of Gilbert’s opinion it might be urthat a devise takes effect undlr stattite, and in that view the interest may be said to be cast on the alien by operation of law. Yet I have no hesitation in deciding in favor of tire doctrine as laid down by Powell. Not on the words of lord Hardwick, as quoted from Knight and du Ple'ssis; for the judge there expressly decibles giving an opinion; hut from a reference to the principia upon which the doctrine is certainly founded.

The only unexceptionable reason that can be assigned why -an alien can take by deed, though he cannot hold, is, that otherwise the proprietor would be restricted in hi's choice Of an alienee $ or in other words, in his right of alienation. And to declare such a conveyance null and void would be attended with this absurdity, that the estate would still remain in the alienor in opposition to his own will and contract. It would therefore seem that the law on this subject would be more satifactorily expressed by asserting that an alien is a competent party to a contract, so that a conveyance, executed to him, shall divest the feoffer or donor, in order that it may'escheat. The tendency of this doctrine to favor the royal prerogative of escheat, would no doubt secure to it a welcome reception, yet it is not too much to pronounce it reasonable in the abstract. This reason is 'as applicable'to the case of a devise as of. a con-trad, and.in the technical-application of the terin purchaser a deyisce is included. . But it is contended that the grant to lord Fairfax was a grant or cession" of sovereign power, and as such.was assumed by the state When it declared itself,independent. Upon considering, as well the ads of the state, with regard to this property, as the..acts of lord Fairfax himself, there is reason to think that both acted under this impression. But to decide on this question, we must look into the deed of cession, and upon its. construction the decision of this Court must depend,’ And here, in every part of .it, we find it divested of.the chief attributes of sovereignty.— not # power .legislative, judicial or executive given, and the words such as are adapted to convey an interest, but no jurisdiction. Some few royal prerogatives, it is true, are expressly conveyed, and these unquestionably must have accrued to the state upon the assertion of independence; But the interest in the soil remained to the grantee. So far, therefore,. I feel no difficulty about sustaining’the claim of the devisee. But did this rest remain in him at the time of the treaty of 1794 ?

I. am of opinion it did. not. The interest acquired under the devise was a mere scintilla juris, and that scintilla was extinguished by ‘the grant of the state vesting this tract in the Plaintiff in error. I will not Say what would hate been the effect of a more general grant. But this grant emanated under a law expressly relating to the-lands of lord Fairfax authorizing thorn to be entered, surveyed and granted.

The. only objection that can be set up to the validity of this grant is, that it was not preceded by án inquest of office. And the question then will be, whether it -was not. competent for the state to assert its rights over the alien’s property, by any other means than an inquest of office. I am of opinion that it was. That the mere executive of the state could not have. done, it, Twill readily-admit; but what was there tq restrict the supreme legislative power, from dispensing with the inquest of office l In the case of Smith, and• the state of Maryland, this Court sustained a specific confiscation of lands .under'a law of the state, where there was neither conviction nor inquest of. office. And in Great Britain, in the casé of treason, an inquest of office is expressly dispensed with by the statute S3, II. VIII, c. 30.. So that there is nothing mystical, nor any thing of indispensable obligation, in this inquest of office. It is, in Great Britain, a salutary restraint upon the exercise of arbitrary power by the crown,,and affords the subject a simple and dectent mode of contesting the claim of his Sovereign; but the legislative power of that country certainly may assert, and has asserted, the right of dispensing with it, and I sec no reason why it was not competent for the legislature of the state of Virginia to do the sáme.

Several collateral questions have arisen, in this case or which, as I do not differ materially from my brethren , I-will only express my opinion in the briefest manner»

I am of opinion that whenever the case, made out in the pleadings, does not, in law, sanction the judgment which lias been given upon it, the error sufficiently appears upon the record to bring the case within the XXV section 'of. the judiciary act.

I am also of opinion that whenever a case is brought up to this Court under that section, the title of the parties litigant must necessarily be enquired iiito, and that' such an enquiry must, in the nature of, things, precede the consideration how far the law, treaty, and soforth, is applicable to it; otherwise an appeal to - this Court would be worse than nugatory.

' And that iti ejecfynent at least, if nót in every possible case, the • decision of this Court must conform to the state of rights of the parties at the time of its own judgment : so that a treaty, although ratified subsequent, to the decision of the Court appealed frojn, becomes a part of the law.of the case and must control our decision.