Fairfax's Devisee v. Hunter's Lessee
11 U.S. 603 (1813)

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U.S. Supreme Court

Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 7 Cranch 603 603 (1813)

Fairfax's Devisee v. Hunter's Lessee

11 U.S. (7 Cranch) 603

Syllabus

Lord Fairfax, at the time of his death, had the absolute property, seizin, and possession of the waste and unappropriated lands in the Northern Neck of Virginia.

An alien enemy may take lands in Virginia by devise and hold the same until office found. The Commonwealth of Virginia could not grant the unappropriated lands in the Northern Neck until its title should have been perfected by possession, and the British treaty of 1794 confirmed the title to those lands in the devisee of Lord Fairfax.

An alien can take lands by purchase, though a not by descent, at the common law, or in other words, he cannot take it by the act of law, but he may by the act of party.

There is no distinction whether the purchaser be by grant or by devise; in either case, the estate vests in the alien not for his own benefit, but for the benefit of the state. Or, in the language of the ancient law, he has the capacity to take, but not to hold lands, and they maybe seized into the hands of the sovereign.

Until the lands are so seized, the alien has complete dominion over them; he is a good tenant of the freehold in a praecipe on a common recovery, and may convey the same to a purchaser. It seems indeed to have been held that an alien cannot maintain a real action for the recovery of lands, but it does not thence follow that he may not defend, in a real action, his title to the lands, against all persons but the sovereign.

In respect to these general rights and disabilities, as to real property, there is no difference between alien friends 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.

The title acquired by an alien by purchase is not divested until office found; the principle is founded upon the ground that, as the freehold is in the alien, and he is tenant to the lord of whom the lands are holden, it cannot be divested out of him, but by some notorious act by which it may appear that the freehold is in another.

The reason of the difference, why, when an alien dies, the sovereign is seized without office found, is because otherwise the freehold would be in abeyance, as the alien cannot have any inheritable blood. Even after office found, the King is not judged in possession, unless the possession were then vacant, for if the possession were then in another, the King must enter or seize by his officer, before, the possession in deed shall be adjudged in him.

Until the King be in possession by office found, he cannot grant lands which are forfeited by alienage.

This was a writ of error to the Court of Appeals of Virginia in an action of ejectment involving the construction

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of the treaties between Great Britain and the United States, the judgment of the Court of Appeals being against the right claimed under those treaties.

The state of the facts, as settled by the case agreed, was as follows:

1. The title the late Lord Fairfax to all that entire territory and tract of land, called the Northern Neck of Virginia, the nature of his estate in the same as he inherited it, and the purport of the several charters and grants from the Kings Charles II and James II, under which his ancestor held, are agreed to be truly recited in an Act of the Assembly of Virginia, passed in the year 1736 (vide Rev.Code, v. 1, ch. 3, 5) "for the confirming and better securing the titles to lands in the Northern Neck, held under the Right Honorable Thomas Lord Fairfax,"

&c.

From the recitals of the act, it appears that the first letters patent (1 Car. 2) granting the land in question to Ralph Lord Hopton and others, being surrendered in order to have the grant renewed with alterations, the Earl of St. Albans and others (partly survivors of, and partly purchasers under the first patentees) obtained new letters patent (2d Car. 2), for the same land and appurtenances, and by the same description, but with additional privileges and reservations, &c.

The estate granted is described to be

"All that entire tract, territory or parcel of land, situate, &c., and bounded by, and within the heads of the Rivers Tappachannock, &c., together with the rivers themselves, and all the islands &c., and all woods, underwoods, timber, &c., mines of gold and silver, lead, tin, &c., and quarries of stone and coal, &c., to have, hold, and enjoy the said tract of land, &c., to the said [patentees] their heirs and assigns forever, to their only use and behoof, and to no other use, intent, or purpose whatsoever."

There is reserved to the Crown, the annual rent of �6, 13s, 4d "in lieu of all services and demands whatsoever;" also one fifth part of all gold, and one tenth part of all silver mines.

Page 11 U. S. 605

To the absolute title and seizin in fee, of the land and its appurtenances, and the beneficial use and enjoyment of the same, assured to the patentees, as tenants in capite, by the most direct and abundant terms of conveyancing, there are superadded, certain collateral powers of baronial dominion; reserving, however, to the Governor, Council and Assembly of Virginia, the exclusive authority in all the military concerns of the granted territory, and the power to impose taxes on the persons and property of its inhabitants for the public and common defense of the colony, as well as a general jurisdiction over the patentees, their heirs and assigns, and all other inhabitants of the said territory.

In the enumeration of privileges specifically granted to the patentees, their heirs and assigns, is

"freely and without molestation 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 or buy the same."

There is also a condition to avoid the grant, as to so much of the granted premises as should not be possessed, inhabited or planted by the means or procurement of the patentees, their heirs or assigns, in the space of 21 years.

The third and last of the letters patent referred to (4 Jac. 2), after reciting a sale and conveyance of the granted premises by the former patentees, to Thomas Lord Culpeper, "who was thereby become sole owner and proprietor thereof in fee simple," proceeds to confirm the same to Lord Culpeper, in fee simple, and to release him from the said condition, of having the lands inhabited or planted as aforesaid.

The said act of assembly then recites that Thomas Lord Fairfax, heir at law of Lord Culpeper, had become "sole proprietor of said territory, with the appurtenances, and the above recited letters patent."

By another Act of Assembly, passed in the year 1748, Rev. Code, v. 1. ch. 4, 10, certain grants from the Crown, made while the exact boundaries of the Northern

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Neck were doubtful, for lands which proved to he within those boundaries, as then recently settled and determined, were, with the express consent of Lord Fairfax, confirmed to the grantees, to be held nevertheless of him, and all the rents, services, profits and emoluments (reserved by such grants) to be paid and performed to him.

In another act of assembly, passed May, 1779, for establishing a land office and ascertaining the terms and manner of granting waste and unappropriated lands, there is the following clause, viz., vide Chy.Rev. of 1783, ch. 13, s. 6, 98.

"And that the proprietors of land within this commonwealth, may no longer be subject to any servile, feudal, or precarious tenure, and to prevent the danger to a free state from perpetual revenue. Be it enacted that the royal mines, quit-rents, and all other reservations and conditions in the patents or grants of land from the Crown of England, under the former government shall be and are hereby declared null and void, and that all lands, thereby respectively granted, shall be held in absolute and unconditional property, to all intents and purposes whatsoever, in the same manner with the lands hereafter to be granted by the commonwealth, by virtue of this act."

2d. As respects the actual exercise of his proprietary rights by Lord Fairfax.

It is agreed that he did, in the year 1748, open and conduct at his own expense an office within the Northern Neck for granting and conveying what he described and called the waste and ungranted lands therein upon certain terms and according to certain rules by him established and published; that he did from time to time grant parcels of such lands in fee, the deeds being registered at his said office in books kept for that purpose, by his own clerks and agents, that according to the uniform tenor of such grants, he did, styling himself proprietor of the Northern Neck, &c., in consideration of a certain composition to him paid, and of certain annual rents therein reserved, grant, &c.; with a clause of reentry for nonpayment of the rent, &c.; that he also demised, for lives and terms of years,

Page 11 U. S. 607

parcels of the same description of lands, also reserving annual rents; that he kept his said office open for the purposes aforesaid, from the year 1748, till his death in December, 1781, during the whole of which period and before, he exercised the right of granting, in fee, and demising for lives and terms of years as aforesaid, and received and enjoyed the rents annually, as they accrued, as well under the grants in fee, as under the leases for lives and years. It is also agreed that Lord Fairfax died seized of lands in the Northern Neck equal to about 300,000 acres, which had been granted by him in fee to one T. B. Martin upon the same terms and conditions and in the same form as the other grants in fee before described, which lands were, soon after being so granted, reconveyed to Lord Fairfax in fee.

3d. Lord Fairfax, being a citizen and inhabitant of Virginia, died in the month of December, 1781, and by his last will and testament, duly made and published, devised the whole of his lands, &c., called or known by the name of the Northern Neck of Virginia in fee to Denny Fairfax (the original defendant in ejectment) by the name and description of the reverend Denny Martin, &c., upon condition of his taking the name and arms of Fairfax, &c., and it is admitted that he fully complied with the conditions of the devise.

4th. It is agreed that Denny Fairfax, the devisee, was a native born British subject, and never became a citizen of the United States, nor any one of them, but always resided in England; as well during the Revolutionary War as from his birth about the year 1750, to his death, which happened some time between the years 1796 and 1803, as appears from the record of the proceedings in the Court of Appeals.

It is also admitted that Lord Fairfax left at his death a nephew named Thomas Bryan Martin who was always a citizen of Virginia, being the younger brother of the said devisee, and the second son of a sister of the said Lord Fairfax; which sister was still living, and had always been a British subject.

5th. The land demanded by this ejectment, being

Page 11 U. S. 608

agreed to be part and parcel of the said territory and tract of land, called the Northern Neck, and to be a part of that description of lands, within the Northern Neck, called and described by Lord Fairfax, as "waste and ungranted," and being also agreed never to have been escheated and seized into the hands of the Commonwealth of Virginia, pursuant to certain acts of assembly concerning escheators, and never to have been the subject of any inquest of office, was contained and included in a certain patent, bearing date 30 April, 1789, under the hand of the then governor, and the seal of the Commonwealth of Virginia, purporting that the land in question, is granted by the said commonwealth unto David Hunter [the lessor of the plaintiff in ejectment] and his heirs forever, by virtue and in consideration of a land office Treasury warrant, issued 23 January, 1788. The said lessor of the plaintiff in ejectment is and always has been a citizen of Virginia, and in pursuance of his said patent entered into the land in question, and was thereof possessed prior to the institution of the said action of ejectment.

6th. The definitive treaty of peace concluded in the year 1783, between the United States of America and Great Britain, and also the several acts of the assembly of Virginia, concerning the premises, are referred to as making a part of the case agreed.

Treaties and acts of assembly referred to.

Provisional articles of peace between Great Britain and the United States, concluded 30 November, 1782, Art. 5 and 6.

Definitive treaty of peace between the same powers, concluded 3 September, 1783, Art. 5 and 6.

Treaty of amity, &c., between the same powers, concluded 19 November, 1794, Art. 9.

"An act respecting future confiscations" (Oct. 1783).

"Whereas it is stipulated by the sixth article of the treaty of peace between the United States and the King of Great Britain, that there shall be no future confiscations

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made, be it enacted that no future confiscations shall be made, any law to the contrary notwithstanding; provided that this act shall not extend to any suit, depending in any court, which was commenced prior to the ratification of the treaty of peace."

"An act declaring who shall be deemed citizens of this commonwealth." [May, 1779, ch. 55, repealed.]

"An act for sequestering British property," &c. [Oct. 1777, ch. 9. vid. Chy.Rev. 64.] All the property and estate whatsoever of British subjects is, by this act, sequestered into the hands of commissioners of sequestration, by them to be preserved, according to certain regulations, for the purpose of being restored or otherwise dealt with, according of the King of Great Britain should act towards the property of citizens of the commonwealth, in the like circumstances. The preamble declaring that inasmuch as the British sovereign was not yet known to have set the example of confiscation, "the public faith and the law and usages of nations," required the like forbearance on our part.

"An act concerning escheats and forfeitures from British subjects" [May, 1779, ch. 14. vid. Chy.Rev. 98]. After reciting the former act, and that it had been found that the property, so sequestered, was liable to be wasted, &c., and that from the advanced price at which it would then sell, it would be most for the benefit of the former owners, in the event of is being thereafter restored, or of the public, if not so restored, that the sale should take place immediately, &c., repeals so much of the former act as was supposed to have suspended the operation of the laws of escheat and forfeiture, and then declares that all the property, real and personal within the commonwealth, belonging, at the time of passing the act, to any British subject, "shall be deemed to be vested in the commonwealth; the lands, slaves and other real estate by way of escheat, and the personal estate by forfeiture." The proceedings on inquests of office, for the purposes of escheat under this act, are prescribed. The duties of escheator are directed to be performed in the Northern Neck by the sheriffs of counties. Section 3 declares who shall be deemed British subjects within the meaning of the act,

Page 11 U. S. 610

"first, all persons, subjects of his Britannic Majesty, who, on 19 April, 1775, when hostilities commenced at Lexington, between the United States of America, and the other parts of the British empire, were resident or following their vocations in any part of the world, other than the said United States, and have not since, either entered into public employment of the said states, or joined the same, and by overt act adhered to them,"

&c.

An act to amend the aforegoing, Oct. 1779, ch. 18, id., p, 110, directs the modes of proceeding in inquests of office, traverse of office and monstrans de droit, as well by British subjects as others.

"An act concerning escheators," May, 1779, ch. 45, id., p. 106, Oct. 1785, ch. 63, p. 52. vid. Rev.Code, v. 1, p. 126, directs the appointment of an escheator for every county, except the counties in the Northern Neck; his qualification, duties, &c., proceedings on inquests of office, traverse and monstrans de droit, &c., prohibits the granting of any lands, seized into the hands of the commonwealth upon office found, till the lapse of twelve months after the return of the inquisition and verdict, into the office of the general court; if no claim be made within that period, or being made, shall be found and discussed for the commonwealth, the clerk of the general court is, within two months thereafter, to certify the fact to the proper escheator, who is, thereupon, to proceed to sell.

"An act to extend the operation of the foregoing act, to the counties of the Northern Neck." 1785, ch. 53, 37.

"An act to amend and reduce into one, the several acts for ascertaining certain taxes, establishing a permanent revenue," &c., Oct. 1782, ch. 8, sec. 24 -- vide Chy.Rev. 176, Sequesters, in the hands of persons holding lands in the Northern Neck, all quit-rents then due, until the right of descent shall be more fully ascertained, and the general assembly shall make final provision thereon, and all quit-rents thereafter to become due, shall be paid into the public treasury, under the operation of the laws of that session, for which quit-rents,

Page 11 U. S. 611

the inhabitants of the Northern Neck shall be exonerated from the future claim of the proprietor.

"An act concerning surveyors," Oct. 1782, ch. 33, sec. 3, vide id., p. 180. Recites that the death of Lord Fairfax may occasion great inconvenience to those inclined to make entries for vacant lands in the Northern Neck; provides that all entries made with the surveyors of the counties in the Northern Neck, and returned to the office formerly kept by Lord Fairfax, shall be deemed as good and valid in law, as those made under his direction, until some made shall be taken up and adopted by one general assembly, concerning the territory of the Northern Neck.

"An act for safekeeping the land papers of the Northern Neck," October, 1785, ch. 63, p. 36, reciting that it was customary to keep the records, &c., of lands within the Northern Neck, in the office of the late proprietor, and that it was necessary that the records on which the titles to lands depended, should be all kept in one office, provides for the removal of the same into the register's office, &c.

Also provides for issuing grants for surveys under entries made in the life of the proprietor and under entries made with surveyors pursuant to the act last above recited, declaring them to be cases till then unprovided for.

Sec. 5. Subjects the unappropriated lands, within the district of the Northern Neck, to the same regulations, and to be granted in the same manner, as is by law directed in cases of other unappropriated lands belonging to the commonwealth.

Sec. 6. Forever, thereafter, exonerates land holders, within the said district, from composition and quit-rents.

"An act declaring who shall be deemed citizens of this commonwealth," May, 1779, ch. 55. Repealed.

"An act declaring tenants of lands or slaves in taille, to hold the same in fee simple." May, 1776, ch. 26, vide Chy.Rev. 45.

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An act to amend the foregoing, October, 1783, ch. 27, vide id., p. 204, Lands or slaves, which, by virtue of the former act, have, or shall become escheatable to the commonwealth, for defect of blood, shall descend, and be deemed to have descended, agreeable to the limitations of the deed or will creating such estates, provided, this act shall not extend to any lands or slaves escheated and sold for the use of the commonwealth.

Page 11 U. S. 618

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