Governeur's Heirs v. Robertson
24 U.S. 332 (1826)

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U.S. Supreme Court

Governeur's Heirs v. Robertson, 24 U.S. 11 Wheat. 332 332 (1826)

Governeur's Heirs v. Robertson

24 U.S. (11 Wheat.) 332

CERTIFICATE OF DIVISION FROM

THE CIRCUIT COURT OF KENTUCKY

Syllabus

An alien may take real property by grant, whether from the state or a private citizen, and may hold the same until his title is devested by an inquest of office or some equivalent proceeding.

The Act of Assembly of Virginia of 1779, c. 13, s. 3, secured from escheat all the interest acquired by aliens in real property previous to the issuing of the patent, and left the rights acquired by them under the patent to be determined by the general principles of the common law.

The title of an alien thus acquired by patent in 1784 under the laws of Virginia and subsequently confirmed to him by a legislative act of Kentucky in 1796, and to his heirs and their grantees by an act of the same state in 1799 will overreach a grant made by Virginia to a citizen in 1785 and defeat the claim of all persons holding under such grant

These legislative acts were valid under the compact of 1789 between the States of Virginia and Kentucky.

This was an action of ejectment brought in the Circuit Court of Kentucky in which the lessors of the plaintiff gave in evidence a patent from the Commonwealth of Virginia for the lands in controversy lying in Kentucky to Robertus S. Brantz, then an alien, bearing date 11 October, 1784, founded on a land office Treasury warrant. They also gave in evidence a certificate of naturalization of the said Brantz in the State of Maryland on 8 November, 1784, and an act of the Legislature of Kentucky passed in 1796, entitled, "An act for the relief of Robertus Samuel Brantz," which recited that he was an alien when the patent issued, confirmed his estate as fully as if he had been a citizen at the time of the grant, with a proviso that nothing in the act should affect the right or title of any other person or persons, but only "the right which this commonwealth may have in the said lands." The said Robertus S. Brantz died in 1797, leaving a son, Johannes Brantz, an alien, incapable of inheriting the lands. An act of the Legislature of Kentucky passed December 9, 1799, reciting that Robertus S. Brandtz had departed this life indebted to Isaac and Nicholas Governeur; that Johannes Brantz, his son and executor and an alien, made a power of attorney to the said N.G. to sell the lands of the said R.S.B. for the payment of the debt, which sale had been made; therefore "all the right which the said R.S.B. had before and at his death," and the right of the said Johannes B. was declared to be vested in

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the said I. and N. Governeur

"as fully as if the said Robertus S.B. had done in his lifetime or as if the said Johannes B. had been a naturalized citizen when he executed the power of attorney for the sale and conveyance of the said lands."

The defendants claimed title under a grant of the Commonwealth of Virginia dated 2 December, 1785, to one Duncan Rose, and proved a regular derivation of title from him.

The plaintiffs thereupon moved the court to instruct the jury that if it found that the grants to R. S. Brantz covered the lands in controversy, that the lessors of the plaintiff duly derive title under N. and I. Governeur, and that R. S. Brantz neither conveyed nor devised those lands, and left no heirs capable of inheriting them, and that the defendants were in possession at the commencement of this suit, that the verdict should be for the plaintiff.

The defendants moved the following instructions:

1. That if the jury finds from the evidence that Robertus S. Brantz was an alien at the time when the patent given in evidence was procured by him, that nothing passed to him by said grant, but that it was void.

2. That if Robertus S. Brantz died leaving his son as alien and having no relations who were citizens of the United States or of any of the states, then upon his death without heirs, the title, if it had passed out of the commonwealth by the patent, was immediately vested in the commonwealth, and if the grant to Duncan

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Rose, from the Commonwealth of Virginia, includes the land in controversy, then the act of Kentucky granting the land to N. and I. Governeur cannot, under the articles of the compact between Virginia and Kentucky, overreach the grant to Duncan Rose from the Commonwealth of Virginia, and they ought to find for the defendants.

3. That the plaintiff, showing no title or connection with Robertus S. Brantz but through and by virtue of the act of Kentucky given in evidence by plaintiff, such grant from Kentucky is, by virtue of the 3d and 5th articles of the compact with Virginia, of inferior dignity and inoperative to overreach the grant by the State of Virginia to Duncan Rose.

4. That the acts of Kentucky of 1796 and 1799, given in evidence by the plaintiff, being in pari materia, are to be taken together; that the latter act is explained by the former, and by operation of said two acts and of the said compact between Virginia and Kentucky, the title of the plaintiff, as offered in evidence by him, is younger in date and inferior in dignity, and cannot overreach the grant to Duncan Rose, so far as those grants conflict.

5. That if they find that the grant to Duncan Rose given in evidence includes the land held thereunder by the defendants, then the grant of the Commonwealth of Kentucky in the act given in evidence by the plaintiff is the junior and inferior claim of title, and the jury ought to find for the defendants.

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The judges of the circuit court being divided in opinion upon the instructions moved, the division was certified to this Court.

Page 24 U. S. 348

MR. JUSTICE JOHNSON delivered the opinion of the Court.

The case was this: Robertus S. Brantz, through whom the plaintiffs make title, obtained on 11 October, 1784, two grants from the Commonwealth of Virginia comprising, together, ten thousand acres of land lying in Kentucky.

One Duncan Rose, through whom the defendants make title, obtained a similar grant of the date of December 2, 1785, covering a part of the same land.

Robertus Brantz, at the date of his patent,

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was an alien, but became naturalized in Maryland on 8 November, 1784, less than one month after the date of his patent and near a year before that of the defendant was obtained.

Some doubts appear to have been raised on the validity of Brantz's patent at an early period, and in the year 1796, the Legislature of Kentucky passed an act reciting that B. was an alien when the patent issued and affirming his estate as against the rights of the commonwealth, leaving it to operate as to all other persons as if that act had not passed.

B. died in 1797, leaving a son, J. B., an alien, incapable of inheriting, and owing debts to a considerable amount to the Governeurs. The son, unaware of his disability, executed a letter of attorney, under which the land was sold, and the purchasers, the Governeurs, subsequently discovering this defect, obtained another act from that state affirming their estate.

And this makes out the plaintiffs' title.

The defendant's title is regularly deduced through the patent to Duncan Rose.

The record presents first a general instruction prayed for in behalf of the plaintiffs on their right to recover. And of this there can be no question independently of the points made in the instructions moved for by the defendant, having regard to the effects, 1st, of his alien character; 2d, that of his son, and 3d, of the compact between Virginia and Kentucky on the rights of the parties.

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These will be considered in their own language and in their order. The first is

"That if the jury find that R.S.B. was an alien at the time when the patents given in evidence were procured by him, nothing passed to him by the said patent, but that it was void."

Although this as well as the subsequent prayers of the defendant purport to present distinct propositions, it will be unavoidable that they should be considered in connection with each other, and with reference to the general prayer of the plaintiff for a charge in his favor. The defendant's object in propounding them is to repel the prayer of the plaintiff and to obtain a charge that the jury should find in his favor. They are introduced in fact as grounds upon which the prayer of the plaintiff should be rejected.

And in this view of the subject the proposition stated draws after it the consideration of another, to-wit: whether, although the patent to Brantz should be pronounced void in consideration of his incapacity to take at the time of its emanation, his subsequent naturalization did not relate back so as to obviate every consequence of this alien disability.

On this subject of relation the authorities are so ancient, so uniform and universal, that nothing can raise a doubt that it has a material bearing on this cause, but the question whether naturalization in Maryland was equivalent to naturalization in Kentucky. To this the Articles of Confederation furnish an affirmative answer, and the

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defendant has not made it a question. Nor indeed has he made a question on the subject of relation back; yet it is not easy to see how he could claim the benefit of an affirmative answer on the question he has raised without first extricating his cause from the effects of the subsequent naturalization, upon the rights derived to Brantz through his patent.

The question argued and intended to be exclusively presented here is whether a patent for land to an alien be not an absolute nullity.

The argument is that it was so at common law, and that the Virginia land laws, in some of their provisions, affirm the common law on this subject.

We think the doctrine of the defendant is not to be sustained on either ground.

It is true, Sir William Blackstone has expressed himself on this subject with less than his usual precision and circumspection, but whether the context be considered or his authorities examined, we shall find that this doctrine cannot be maintained. The passage relied on is found in his second volume, p. 347, 348, of Christian in these words: "If the King grants lands to an alien, it operates nothing." But it would be doing injustice to the writer not to weigh his meaning by the words preceding and following this sentence. His language is this,

"But the King's grant shall not enure to any other intent than that which is precisely expressed in the grant. As, if he grants lands to an alien, it operates nothing, for such grant shall not also

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enure to make him a denizen, that so he may be capable of taking by grant."

And the authority referred to is Brooke's Abr. Patent 62 and Finch's Law 110[it ought to be 111].

If we could admit that this learned writer could have committed so egregious a blunder as to suppose that an alien must be made denizen before he could take by grant, as a general proposition, he might stand charged with having greatly transcended his authorities. But when it is considered that the effect of an alien's being made denizen, is not to enable him to take lands, but to enable him to hold them against the King, we at once see that his language is to be limited to the proposition laid down in the previous sentence, to-wit, that the King's grants shall not enure to the double intent, when made to an alien, of vesting in him the thing granted, and then, by implication, constituting him a denizen, so as to enable him to hold an indefeasible estate.

In the case referred to as abridged by Brooke, the latter proposition alone is laid down, and the case in the Year Books, which the author cites, affirms nothing more. This was Bagot's Case, 7 Edw. IV. 29, which appears to have occasioned a vast deal of discussion for several terms in the British courts, and in which Bagot and another grantee of an office by the Crown, brought assize, and the defendant pleaded, as to Bagot, alienee. In that cause there was no office found, and the question on this part of the case distinctly was whether the grant did not both vest the right to the office and create a capacity

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to maintain assize to recover it. So in a case in 4 Leon. 82, the same question was raised where there had been an inquest of office, and in both the decision distinctly was that the King's grant did not enure to an intent not expressed distinctly as its object, or in other words to a double intent, one direct, the other incidental. In the latter case, the alien's right had been affirmed by a patent from the Queen, and the point argued was that the right of the party was protected by the act of the Queen against the effect of the office found. But in both these cases the decision was no more than this that the act of the Crown did not incidentally make the party a denizen, and while an alien, he could not be enabled, by any act of the Crown, to exercise rights which appertained only to denizens or to persons naturalized or natural born subjects.

The other authority to which Blackstone refers, to-wit Finch, imports no more than that an alien shall not maintain an action real or mixed, but has no direct bearing upon the doctrine for which it seems to have been cited by the author.

The words in the passage in Blackstone more immediately relied on by the defendant, to-wit, "If he grants to an alien, it operates nothing" are obviously taken from another passage in Brooke's Abr. Patent, 44, which article gives those words as a dictum of Keble, one of the judges. And by referring to the authority in

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the Year Book, on which the author relies, to-wit, 2 Hen. VII, 13, the dictum is there found attributed to Keble. But in that case, as in Bagot's Case there is nothing more argued than that the King's grant shall not enure to the double purpose. And the observation of Keble is only made by way of illustration, accompanied by several others of a similar character, such as that a grant of land to a felon shall not operate as a pardon; or a grant to a company not corporate, carry with it a grant of incorporation.

It is clear, therefore, that this doctrine has no sufficient sanction in authority, and it will be found equally unsupported by principle or analogy.

The general rule is positively against it, for the books, old and new, uniformly represent the King as a competent grantor in all cases in which an individual may grant, and any person in esse, and not civiliter mortuus, as a competent grantee. Femes covert, infants, aliens, persons attained of treason or felony, clerks, convicts, and many others are expressly enumerated as competent grantees. Perkins, Grant 47-48, 51, &c., Comyn's Dig. Grant, B. 1. It behooves those, therefore, who would except aliens, when the immediate object of the King's grant, to maintain the exception.

It is argued that there is an analogy between this case and that of the heir or the widow or the husband alien, no one of whom can take, but the King shall enter upon them without office found. Whereas an alien may take by purchase

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and hold until devested by office found. It is argued that the reason usually assigned for this distinction, to-wit, "Nil frustra agit lex," may with the same correctness be applied to the case of a grant by the King to an alien, as to one taking by descent, dower, or curtesy; that the alien only takes from the King to return the subject of the grant back again to the King by escheat. But this reasoning obviously assumes as law the very principle it is introduced to support, since unless the grant be void, it cannot be predicated of it that it was executed in vain. It is also inconsistent with a known and familiar principle in law, and one lying at the very root of the distinction between taking by purchase and taking by descent. It implies, in fact, a repugnancy in language. Since the very reason of the distinction between aliens taking by purchase and by descent is that one takes by deed, the other by act of law, whereas a grantee, ex vi termini, takes by deed, and not by act of law. If there is any view of the subject in which an alien, taking under grant, may be considered as taking by operation of law, it is because the grant issues and takes effect under a law of the state. But this is by no means the sense of the rule, since attaching to it this idea would be to declare the legislative power of the state incompetent to vest in an alien even a defeasible estate.

That an alien can take by deed and can hold until office found must now be regarded as a positive rule of law so well established that the

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reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society, and a desire to protect the individual from arbitrary aggression. Hence it is usually said that it has regard to the solemnity of the livery of seizin, which ought not to be devested without some corresponding solemnity. But there is one reason assigned by a very judicious compiler which, from its good sense and applicability to the nature of our government, makes it proper to introduce it here. I copy it from Bacon, not having had leisure to examine the authority which he cites for it. "Every person," says he, "is supposed a natural born subject, that is resident in the kingdom, and that owes a local allegiance to the King till the contrary be found by office." This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favor, a grant of freehold.

It remains to examine the effect of the Virginia laws upon grants made to aliens. Those laws provide that aliens may purchase warrants for land and pass them through all the stages necessary to obtain a patent, and may exercise every power over the inchoate interest thus acquired, in the same manner with citizens, and after returning the plat and survey to the register's office, shall be allowed eighteen months to become a citizen or transfer their interests to those who are citizens.

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These provisions, it is contended, import a prohibition to issue a grant to an alien.

But we think the inference by no means unavoidable, and in addition to the general and strong objections to raising an enactment by inference, consider it as unsupported either by the policy or the provision of the act.

It is well known that the purchaser of a warrant, under the laws of Virginia, acquired a beneficial interest in the soil, that the survey located that interest upon a particular portion of soil by metes and bounds, and the interest thus acquired was devisable, assignable, descendible, and wanted, in fact, nothing but a mere formality to give it all the attributes of a freehold. Hence a doubt arose not whether an alien could acquire an interest under a warrant and survey, but whether that interest might not be subject to escheat. The object of the law was to encourage aliens to purchase and to settle the country, and all its provisions on this subject were intended to enlarge his rights, not to restrict them. Aliens arriving in the country could not immediately be naturalized, but they might immediately enter upon those arrangements for establishing themselves when naturalized which were necessary to precede a grant. Hence the only true construction of the Virginia law is that as to all the interest acquired in land previous to grant, it was intended to enlarge their rights and secure them from escheat, while as to the rights which they might acquire by patent, they were to be left under the ordinary

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alien disabilities, whatever those were, which the law imposed.

The Virginia act therefore has no influence upon the rights of the parties in this cause.

The object of the next four prayers for instruction in behalf of the defendant, is, to maintain the proposition, that the act of Kentucky of 1799, which confirmed the interest of the purchasers under the letter of attorney of the son of Brantz, was in derogation of the rights of Duncan Rose, the subsequent grantee.

The argument is that on the decease of the father, without an heir that could take, the land in controversy reverted to the state, and the junior patent then fastened upon it in the ordinary manner in which it attaches to the soil when a prior grant is removed from before it. That the act of 1799 was nothing more than a junior grant for the same land, and a grant which the state was estopped from making to the prejudice of the prior patentee, as well upon general principles as under the provisions of the compact between the two states.

It is obvious that in considering this argument, the court cannot place the defendant on more favorable ground than by substituting Virginia for Kentucky, and allowing him all the rights that he might have set up against the former state. And it is equally obvious that to admit of the right set up in favor of the junior patent's attaching as a patent upon the escheat, it must be affirmed that escheated land was liable to be taken up by patent, whereas the act authorizes patents

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to issue upon waste and unappropriated lands exclusively, and not upon escheated property. And so it has been settled by adjudications both in Kentucky and Virginia. Elmendorf v. Carmichael, 3 Littel. 484.

It is further obvious that as to the claim set up by the defendant on the ground of moral right and estoppel, the court will concede much more than he has a right to assume if it allows him the benefit of his argument to the whole extent in which it may be applied to the rights and obligations of individuals. Assuming, argumenti gratia, that the state could not supersede the right of the defendant derived under his patent in any case in which an individual would be estopped or might be decreed to convey. But it is only on the ground of fraud or contract that the law acts upon individuals in either of the supposed cases. Fraud is not imputable to a government, but if it were, where is there scope found for the imputation of it in the relation between a state and the patentee of its vacant lands? In selling the warrant, the state enters into contract no further than that the purchaser shall have that quantity of vacant land if he can find it. And when the patent issues, it is to the patentee, if to anyone, that the fraud is imputable, if the land be not vacant. The state never intends to grant the lands of another, and where the grantee is ignorant of the previous patent, the maxim caveat emptor is emphatically applicable to this species of contract.

But to what result would this doctrine lead

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us? A junior grant is to be vested with the attribute of hanging over a valid and indefeasible appropriation of soil, waiting to vest upon the occurrence of the casualty of an escheat or an indefinite failure of heirs? This may not happen in a hundred years; it may not occur upon one life as in this case, but may occur after the lapse of one hundred lives. It is impossible that such a claim can be countenanced. Neither principle nor policy sustains it. And in fact the decision upon the first ground is fatal to the cause of the defendant upon the last, for upon no principle but the assumed nullity of the patent to Brantz could any contract be imputed to the state to make good the junior patent, under which the defendant deduces his title. In that case, the land would still have remained vacant land, and as such the junior patent would of course have taken effect upon it as a patent, and by the immediate operation of the land law, without reference to the supposed incidental rights here set up.

So far, this Court has considered the cause as one of a new impression, but on examining the adjudications quoted, they are satisfied that in every point material to the plaintiffs, the case has been solemnly adjudicated in the courts of Kentucky.

It will therefore direct an opinion to be certified in favor of the plaintiff.

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