British subjects born before the Revolution are equally
incapable with those born after of inheriting, or transmitting the
inheritance of lands in this country.
The treaties of 1783, and 1794 only provide for titles existing
at the time those treaties were made, and not to titles
subsequently acquired.
Actual possession is not necessary to give the party the benefit
of the treaty, but the existence of title at the time is
necessary.
Where J.D., an alien and British subject, came into the United
States subsequent to the treaty of 1783 and, before the signature
of the treaty of 1794, died seized of the lands in question,
held that the title of his heirs was not protected by the
treaties.
In what cases citizenship may be presumed so as to confirm a
title to lands.
The doctrine of estoppel, or the principle of legal policy which
forbids a party from denying the title under which he has received
a conveyance, does not apply as between vendor and vendee,
especially where the latter has not received possession from the
former.
This was an ejectment in the court below, brought to recover the
possession of lot No. 18, in the Town of
Page 20 U. S. 536
Danville in the State of Kentucky. It appeared, from the
evidence in the cause that the plaintiffs are the heirs of John
Dunlap, who was a citizen of Pennsylvania and claimed as the heir
of his brother, James Dunlap, who died seized of the premises in
question in the autumn of 1794. James Dunlap was an alien, and a
subject of the King of Great Britain, who came to the United States
subsequent to the treaty of peace of 1783, and died before the
signature of the treaty of 1794. After his death, one Hunter,
professing to have purchased of John Dunlap, entered into
possession and conveyed to several persons, parcels of the lot, and
to the defendant, Rochester, one parcel in 1795, who entered into
possession thereof and has occupied the same ever since, having
acknowledged the title of said Dunlap as that under which he
held.
Upon this evidence, the counsel for the plaintiffs moved the
court to instruct the jury
"1st. That if the jury find the defendant obtained possession
under James G. Hunter, who obtained possession as the attorney of
John Dunlap, or who claimed under an executory agreement with John
Dunlap, and that said defendant has held and occupied under John
Dunlap's title, claiming from said Hunter, as the attorney of said
Dunlap, or under an executory agreement, or has, since he was in
possession, acknowledged the title of said Dunlap as that under
which he held, that then the defendant is not permitted to impeach
or controvert the title of said John Dunlap by parol evidence that
James Dunlap was an alien. "
Page 20 U. S. 537
"2d. That if the defendant Bochester acquired the possession and
has continued to hold as above, the possession of the defendant was
no such an adverse possession as would toll the right of entry of
said John Dunlap, and the statute of limitations does not
apply."
"3d. That if James Dunlap occupied the lot from the date of his
deed till his death, and said James G. Hunter and the defendant
have continued to hold it under the claim of John Dunlap, his
brother, as heir to James, that from these facts, connected with
the evidence in the cause and in the absence of any proof of an
inquisition or office found as to the alienage of James Dunlap, and
in the absence of any grant or other act of the commonwealth or its
officers since the death of said James, in derogation of the title
of said James or of said John, it should presume that said James
was a citizen of the United States."
"4th. That if it believe the evidence, it should find for the
plaintiff."
"5th. That the jury has a right to presume that James Dunlap was
a citizen of the State of Virginia or of some one of the United
States, and if so, John Dunlap was his heir, and capable of
inheriting."
"6th. That if James Hunter entered under a parol agreement with
John Dunlap, the possession of said Hunter was the possession of
said Dunlap"
"7th. That the inheritance claimed by John Dunlap as heir to
James is protected by and within the provisions of the treaty
between the United States and Great Britain signed 19 November,
1794."
The court refused the 1st, 3d, 4th, 5th, 6th, and
Page 20 U. S. 538
7th instructions moved by the plaintiff and gave the second,
with this qualification,
"that if John Dunlap had either title or the actual possession
of the premises after the death of James Dunlap and before the
entry of said Hunter or of the defendant, then the statute of
limitations did not apply."
The defendant moved the instruction that if James Dunlap was an
alien and died before 19 November, 1794, then the plaintiff has
made out no title to the land in question which will authorize it
to find for him, which was given by the court with this
qualification, that if the jury found that John Dunlap had actual
possession of the premises after the death of James Dunlap and
prior to the time when Hunter took possession, in that event this
instruction would not be given.
Page 20 U. S. 543
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The exceptions taken to the opinion of the circuit court in this
case may be divided into two parts:
1st. Those which respect the actual title of the plaintiffs.
2d. Those which respect the ability of the defendant to contest
that title.
1st. The title of the plaintiffs.
Page 20 U. S. 544
They are the heirs of John Dunlap, who was a citizen of
Pennsylvania, and claimed as the heir of James Dunlap, who died
seized of the premises in the declaration mentioned in the autumn
of 1794. The defendants allege and prove that James Dunlap was an
alien, and subject to the King of Great Britain who came into the
United States subsequent to the treaty of peace and who died before
the signature of the treaty of 1794, and whose title therefore is
not protected by either of those treaties.
The court having left the fact to the jury, its verdict has
found that James Dunlap died previous to the signature of the
treaty of 1794, and the question is whether the court erred in
determining that this case was not either within the treaty of
peace or the treaty of 1794.
It has been decided that British subjects, though born before
the Revolution, are equally incapable with those born subsequent to
that event of inheriting or transmitting the inheritance of lands
in this country. Consequently the sole inquiry in this case
respects the effect of the treaties between the United States and
Great Britain.
The treaty of peace has always been considered as providing only
for titles existing at the time, and as the title of James Dunlap
was afterwards acquired, it can derive no aid from that treaty.
James Dunlap therefore, if he continued to be an alien,
continued liable to all the disabilities of alienage, one of which
is an incapacity to transmit lands to heirs. Consequently, when he
died, the next of kin could take nothing by descent. The treaty of
1794,
Page 20 U. S. 545
like that of 1783, provides only for existing rights. It does
not give title. Had James conveyed or devised the property to John,
the title would have vested in him subject to the right of the
government to seize the land, and the treaty would have confirmed
that title, so if the law would have vested the estate in him by
descent. But as the fact is, he had no title, nothing on which the
treaty could operate. It has been said that this Court has never
supposed actual possession to be necessary to entitle a party to
the benefit of the treaty. This is true. But the existence of title
at the time has always been supposed necessary.
The plaintiffs also insisted that under the circumstances of
this case, the jury might presume James Dunlap was a citizen.
The circumstances are the length of time which has intervened
since his arrival in this country and since his first acquisition
of real estate during which there have been no proceedings
instituted under the laws of escheat and forfeiture.
The weight which might be allowed to this argument had the
property continued in the peaceable occupation of the heirs of
James Dunlap and had this presumption been required to sustain the
title clothed with that possession is, we think, diminished by the
circumstance that the land was, soon after his death, claimed and
occupied by a citizen of Kentucky as a purchaser. In such a state
of things, it is not surprising that no inquiries should be made
into his citizenship and that no person should feel disposed to
intermeddle with the affair.
Page 20 U. S. 546
The alienage of James Dunlap being fully proved, and the laws of
Virginia requiring, as indispensable to his citizenship, that he
should take the oath of fidelity to the commonwealth in a court of
record of which the clerk is directed to grant a certificate, we do
not think that this fact, which, had it taken place, must appear on
record, ought to be presumed unless there were some other fact,
such as holding an office of which citizens alone were capable or
which required an oath of fidelity, from which it might be
inferred.
In favor of long possession, in favor of strong apparent equity,
much may be presumed, but in a case where the presumption would
defeat possession, where the equity is doubtful, where the parties
rely upon strict law, courts will be cautious how they lean in
favor of presuming that which does not appear and which might be
shown by a record.
The circuit court has declined giving the instruction which was
required, but on this point has given no counter-instruction, and
has assigned no reason for refusing that which was required. It may
have been that the presumption in favor of a deed from John Dunlap
so entirely balances the presumption in favor of the citizenship of
James as to prevent the allowance of either.
If James Dunlap could not be considered as a citizen at the time
of his death, the plaintiffs have no title, and the only remaining
question arising on the bill of exceptions is was the defendant
restrained
Page 20 U. S. 547
on the principle of estoppel or any other principle from
resisting their claim.
It is contended that he is so restrained because John Dunlap
sold to Hunter, and Hunter has conveyed to the present
defendant.
It is very certain that these sales do not create a legal
estoppel. The defendant has executed no deed to prevent him from
averring and proving the truth of the case. If he is bound in law
to admit a title which has no existence in realty, it is not on the
doctrine of estoppel that he is bound. It is because, by receiving
a conveyance of a title which is deduced from Dunlap, the moral
policy of the law will not permit him to contest that title.
This principle originates in the relation between lessor and
lessee, and so far as respects them is well established, and ought
to be maintained. The title of the lessee is in fact the title of
the lessor. He comes in by virtue of it, holds by virtue of it, and
rests upon it to maintain and justify his possession. He professes
to have no independent right in himself, and it is a part of the
very essence of the contract under which he claims that the
paramount ownership of the lessor shall be acknowledged during the
continuance of the lease, and that possession shall be surrendered
at its expiration. He cannot be allowed to controvert the title of
the lessor without disparaging his own, and he cannot set up the
title of another without violating that contract by which he
obtained and holds possession and breaking that faith which he has
pledged and the obligation of which is still continuing and in full
operation.
Page 20 U. S. 548
In considering this subject we ought to recollect too the policy
of the times in which this doctrine originated. It may be traced
back to the feudal tenures, when the connection between landlord
and tenant was much more intimate than it is at present; when the
latter was bound to the former by ties not much less strict nor not
much less sacred than those of allegiance itself.
The propriety of applying the doctrines between lessor and
lessee to a vendor and vendee may well be doubted.
The vendee acquires the property for himself, and his faith is
not pledged to maintain the title of the vendor. The rights of the
vendor are intended to be extinguished by the sale, and he has no
continuing interest in the maintenance of his title unless he
should be called upon in consequence of some covenant or warranty
in his deed. The property having become by the sale the property of
the vendee, he has a right to fortify that title by the purchase of
any other which may protect him in the quiet enjoyment of the
premises. No principle of morality restrains him from doing this,
nor is either the letter or spirit of the contract violated by it.
The only controversy which ought to arise between him and the
vendor respects the payment of the purchase money. How far he may
be bound to this by law or by the obligations of good faith is a
question depending on all the circumstances of the case, and in
deciding it all those circumstances are examinable.
If the vendor has actually made a conveyance, his title is
extinguished in law as well as equity, and it
Page 20 U. S. 549
will not be pretended that he can maintain an ejectment. If he
has sold but has not conveyed, the contract of sale binds him to
convey unless it be conditional. If, after such a contract, he
brings an ejectment for the land, he violates his own contract
unless the condition be broken by the vendee, and if it be, the
vendor ought to show it.
In this case, a sale by John Dunlap to Hunter is stated, and a
conveyance from Hunter to Rochester, the defendant, is also stated,
but that conveyance does not appear in the record. Whether it
contains any reference to the title of Dunlap or not is not shown.
The defendant then holds in his own right by a deed of conveyance
which purports to pass the legal title. The plaintiffs show no
title in themselves, but allege and prove that the title under
which the defendant claims is derived from their ancestor. They
therefore insist that the defendant is bound in good faith to admit
this title and surrender the premises to them.
But the sole principle on which this claim is founded is that
the defendant must trace his title up to their ancestor, and is
bound therefore to admit it. But if the deed of the defendant does
not refer to their ancestor, and the record does not convey this
information, the defendant holds in opposition to the title of John
Dunlap or claims to have acquired that title. If he holds under an
adversary title, his right to contest that of Dunlap is admitted.
If he claims under a sale from Dunlap, and Dunlap himself is
compelled to aver that he does, then the plaintiffs themselves
assert a title against this contract. Unless
Page 20 U. S. 550
they show that it was conditional and that the condition is
broken, they cannot, in the very act of disregarding it themselves,
insist that it binds the defendant in good faith to acknowledge a
title which has no real existence.
Upon reason, then, we should think that the defendant in this
case, under all its circumstances, is at liberty to controvert the
title of the plaintiffs.
But it is contended that this question is settled in Kentucky by
authority. There are also several cases quoted from the decisions
in New York, which we have not had an opportunity of examining
fully. Those we have considered are, we think, distinguishable from
this in some of their circumstances, especially in this material
one, that the vendor gave possession to the vendee. But the
decisions of one state, though highly to be respected, are not
authority in another, especially with respect to land titles. In
Phillips v. Rothwell, in 4 Bibb 33, the defendant claimed
under a conveyance from the tenant of the plaintiff. That case
therefore was decided on the doctrine applicable to lessor or
lessee.
The case in 2 Marshall 242 was the case of a purchaser who had
not received a conveyance and who was not allowed to set up an
outstanding title in a third person. The report gives us only the
opinion of the court, not accompanied by a statement of the case or
the points made at the bar. We therefore cannot tell whether, in
asserting his title, the vendor acted in opposition to his
contract. We cannot say that the condition on which the sale might
depend had not been broken. There is, too, a difference between
setting
Page 20 U. S. 551
up an adverse title in a third person to controvert an actual
existing title, and resisting a claim made by a person having no
title whatever. In the case last mentioned, it would appear that
the plaintiff had a title which was in itself sufficient to
maintain his action, but there was another and perhaps a superior
title in a third person with which the defendant was not connected.
The rejection of all evidence of this title does not, we think,
prove that the same court would have compelled the defendant to
acknowledge a title of which no evidence was given, or have
rejected proof of any title in himself, especially when the vendee
received nothing -- not even possession -- from the vendor.
Judgment affirmed with costs.
