The decision of this Court as to the validity of the law of
Kentucky commonly called the occupying claimants law does not
affect the question of the validity of the law of Kentucky commonly
called the seven years possession law.
The seventh article of the compact between Virginia and Kentucky
declares
"All private rights and interests of lands within the said
district (Kentucky) derived from the laws of Virginia prior to such
separation, shall remain valid and secure under the laws of the
proposed state, and shall be determined by the laws now existing in
this state [Virginia]."
Whatever course of legislation by Kentucky which would be
sanctioned by the principles and practice of Virginia should be
regarded as an unaffected compliance with the compact. Such are all
reasonable quieting statutes.
From as early a date as the year 1705, Virginia has never been
without an act of limitation, and no class of laws is more
universally sanctioned by the practice of nations and the consent
of mankind than those laws which give peace and confidence to the
actual possessor and tiller of the soil. Such laws have frequently
passed in review before this Court, and occasions have occurred in
which they have been particularly noticed as laws not to be
impeached on the ground of violating private rights.
It is impossible to take any reasonable exception to the course
of legislation pursued by Kentucky on this subject. She has in fact
literally complied with the compact in its most rigid construction.
For she adopted the very statute of Virginia in the first instance,
and literally gave her citizens the full benefit of twenty years to
prosecute their suits before she enacted the law now under
consideration. As to the exceptions and provisos and savings in
such statutes, they must necessarily be left in all cases to the
wisdom or discretion of the legislative power.
It is not to be questioned that laws limiting the time of
bringing suits constitute a part of the
lex foci of every
country -- the laws for administering justice, one of the most
sacred and important of sovereign rights and duties, and a
restriction upon which must materially affect both legislative and
judicial independence. It can scarce be supposed that Kentucky
would have consented to accept a limited and crippled sovereignty;
nor is it doing justice to Virginia to believe that she would have
wished to reduce Kentucky to
a state of vassalage. Yet it would be difficult, if the literal
and rigid construction necessary to exclude her from passing the
limitation act were adopted, to assign her a position higher than
that of a dependant on Virginia.
The limitation act of the State of Kentucky, commonly known by
the epithet of the "seven years law," does not violate the compact
between the State of Virginia and the State of Kentucky.
Where a patent was issued for a large tract of land, and by
subsequent conveyances the patentee sold small parts of the said
land within the bounds of the original survey, it has been decided
by the courts of Kentucky that the party
Page 30 U. S. 458
offering in evidence a conveyance of the large body held under
the patent containing exceptions of the parts disposed of is bound
in an action of ejectment to show that the trespass proved is
without the limits of the land sold or excepted.
In the circuit court, the lessee of Joshua Barney brought an
ejectment for 50,000 acres of land in the State of Kentucky which
he claimed under a patent from the Commonwealth of Virginia to
Philip Barbor dated 27 December, 1786, and a deed from Barbor to
him dated 7 August, 1786. The defendants, William May and John
Hawkins, derived their title under a junior grant to William May
for 4,000 acres of land, and they proved on the trial in the
circuit court that John Creemer, who had conveyed part of the land
included in the grant to William May, settled on the land in 1790,
and that both of the defendants in the ejectment have had
possession of the land claimed by them ever since.
The defendants introduced and read in evidence a deed from
Joshua Barney to John Oliver dated 6f January, 1812, by which the
50,000 acres, conveyed to him by Philip Barbor were conveyed to
John Oliver. The deed contained a recital that he had previously
sold and conveyed to John Berryman 11,000 acres of the land, and
other small tracts to Charles Helm, in detached parcels.
The plaintiff then produced and read a deed in evidence, a deed
executed by John Oliver and himself, on 6 January, 1812, in which
the former conveyances were recited and in which it appeared that
the conveyance made by him to John Oliver on 6 January, 1812, was
to secure the payment of $20,000 within three years, with power to
John Oliver to sell the land or any part of it if Barney did not
repay the sum which had been loaned to him by Oliver; he also
produced in evidence a deed executed by Robert Oliver on 21
October, 1816, as the attorney in fact of John Oliver, by which the
title of John Oliver, to the whole of the land is released to
Barney. This deed also recites the previous conveyances to Berryman
and others.
The power of attorney from John Oliver to Robert Oliver was
dated at Baltimore on 12 October, 1815, and was
Page 30 U. S. 459
as follows:
"And further I do hereby authorize and empower my said attorney
to contract and agree for the sale and to dispose of as he may
think fit all or any of the messuages, lands, and tenements and
hereditaments of and belonging to me in any parts of the United
States or held by me in trust or otherwise. And to sell, execute,
and deliver such deeds, conveyances, bargains, and sales, for the
absolute sale and disposal thereof, or of any part thereof, with
such clauses, covenants and agreements to be therein contained as
my said attorney shall think fit and expedient. Or to lease and let
such lands and tenements for such periods and rents as may by him
be deemed proper, and to recover and receive the rents due and to
become due therefrom, and to give aquittals and discharges for the
same, hereby meaning and intending to give and grant unto my said
attorney my full power and whole authority in all cases without
exception or reservation, in which it is or may become my duty to
act, whether as executor, administrator, trustee, agent, or
otherwise."
It was in evidence that neither John Oliver or Joshua Barney had
ever been within the limits of the State of Kentucky until within
three months before the institution of the ejectment, when Joshua
Barney came into the state. It was also proved that the debt due by
Joshua Barney to John Oliver was still unpaid.
On the trial, the circuit court instructed the jury that the
deeds to John Oliver and from Oliver to Barney did not show such an
outstanding title as the defendants could allege, and refused to
instruct generally that the plaintiff had no right to recover.
The court also refused to instruct the jury that the plaintiff
had no right to recover unless he showed that the 11,000 acres did
not cover the defendants, recited to have been conveyed to
Berryman.
The court also refused to instruct the jury that the law was for
the defendants if they found from the evidence that the defendants
had had the land twenty years in possession before the bringing of
the suit.
The defendants excepted to the opinion of the court and
prosecuted this writ of error.
Page 30 U. S. 463
MR. JUSTICE JOHNSON delivered the opinion of the Court, MR.
JUSTICE BALDWIN dissenting.
This is a writ of error to a judgment of the Circuit Court of
Kentucky, brought to reverse the decision of that court on a bill
of exceptions.
The suit was ejectment by Barney, brought to recover a part of a
tract of 50,000 acres of land in possession of Mr. Hawkins within
the limits of his patent. Both parties claimed under Virginia
patents, of which Barney's was the eldest. The plaintiff below
proved a grant to Barbor and a conveyance from the patentee to
himself. The defendant below proved a grant to one May, a
conveyance from May to Creemer, and from Creemer to himself. He
then proved that Creemer entered into possession under May in 1796,
and resided on the land so conveyed to him until he sold to
defendant below, who has had peaceable possession of the premises
ever since, until the present suit was brought, which was May 4,
1817.
Page 30 U. S. 464
This state of facts brings out the principal question in the
cause, which was on the constitutionality of the present limitation
act of that state, commonly known by the epithet of the "seven
years law." The court charged the jury in favor of Barney, and the
verdict was rendered accordingly.
It is now argued that by the seventh article of the compact with
Virginia, Kentucky was precluded from passing such a law. And that
this Court has, in fact, established this principle in its decision
against the validity of the occupying claimant laws.
I am instructed by the Court to say that such is not their idea
of the bearing of that decision.
On a subject so often and so ably discussed in this Court and
elsewhere and on which the public mind has so long pondered, it
would be an useless waste of time to amplify. A very few remarks
only will be bestowed upon it.
The article reads thus:
"All private rights and interests of lands within the said
district derived from the laws of Virginia prior to such separation
shall remain valid and secure under the laws of the proposed state,
and shall be determined by the laws now existing in this
state."
Taken in its literal sense, it is not very easy to ascribe to
this article any more than a confirmation of present existing
rights and interests, as derived under the laws of Virginia. And
this, in ordinary cases of transfer of jurisdiction, is exactly
what would have taken place upon a known principle of international
and political law without the protection of such an article. We
have an analogous case in the thirty-fourth section of the
Judiciary Act of the United States, in which it is enacted that the
laws of the several states shall be rules of decision in the courts
of the United States, and which has been uniformly held to be no
more than a declaration of what the law would have been without it,
to-wit that the
lex loci must be the governing rule of
private right under whatever jurisdiction private right comes to be
examined.
And yet, when considered in relation to the actual subject to
which this article was to be applied and the peculiar phraseology
of it, there will be found no little reason for inquiring whether
it does not mean something more than would be
Page 30 U. S. 465
implied without it, or why it was introduced if not intended to
mean something more. It had an almost anomalous subject to operate
upon.
I perceive that in the copy of Littell's Laws which has been
sent to our chambers, someone has had the perseverance to go over
the legislation of Virginia relating to the lands of Kentucky
whilst under her jurisdiction and to mark the various senses to
which the word "rights" has been applied in the course of her
legislation. It is curious to observe how numerous they are. Her
land system was altogether peculiar, and presented so many aspects
in which it was necessary to consider it in order to afford
protection to the interests imparted by it that it might, with much
apparent reason, have been supposed to require something more than
the general principle to secure those interests. So much remained
yet to be done to impart to individuals the actual fruition of the
sales or bounties of that state that there must have been,
unavoidably, left a wide range for the legislative and judicial
action of the newly created commonwealth. When about then to
surrender the care and preservation of rights and interests so
novel and so complex into other hands, it was not unreasonably
supposed by many that the provisions of the compact of separation
were intended to embrace something beyond the general assertion of
the principles of international law in behalf of the persons whose
rights were implicated in or jeoparded by the transfer.
Such appears to have been the view in which the majority of this
Court regarded the subject in the case of
Green v. Biddle
when, upon examining the practical operation of the occupying
claimant laws of Kentucky upon the rights of landholders, they were
thought to be like a disease planted in the vitals of men's estate,
and a disease against which no human prudence could have guarded
them, or at least no practical prudence, considering the state of
the country and the nature of their interests. And when again, upon
looking through the course of legislation in Virginia, there was
found no principle or precedent to support such laws, the Court was
induced to pass upon them as laws calculated in effect to
annihilate the rights secured by the compact while it avoided an
avowed collision with its literal meaning. But in all its
Page 30 U. S. 466
reasoning on the subject, it will be found to acknowledge that
whatever course of legislation could be sanctioned by the
principles and practice of Virginia would be regarded as an
unaffected compliance with the compact.
Such, we conceive, are all reasonable quieting statutes. From as
early a date as the year 1705, Virginia has never been without an
act of limitation. And no class of laws is more universally
sanctioned by the practice of nations and the consent of mankind
than laws which give peace and confidence to the actual possessor
and tiller of the soil. Such laws have frequently passed in review
before this Court, and occasions have occurred in which they have
been particularly noticed as laws not to be impeached on the ground
of violating private right. What right has anyone to complain when
a reasonable time has been given him, if he has not been vigilant
in asserting his rights? All the reasonable purposes of justice are
subserved if the courts of a state have been left open to the
prosecution of suits for such a time as may reasonably raise a
presumption in the occupier of the soil that the fruits of his
labor are effectually secured beyond the chance of litigation.
Interest rei publicae ut finis sit litium and
vigilantibus non dormientibus succurrit lex are not among
the least favored of the maxims of the law.
It is impossible to take any reasonable exception to the course
of legislation pursued by Kentucky on this subject. She has in fact
literally complied with the compact in its most rigid construction,
for she adopted the very statute of Virginia in the first instance,
and literally gave to her citizens the full benefit of twenty years
to prosecute their suits before she enacted the law now under
consideration. As to the exceptions and provisos and savings in
such statutes, they must necessarily be left in all cases to the
wisdom or discretion of the legislative power.
It is not to be questioned that laws limiting the time of
bringing suit constitute a part of the
lex fori of every
country; they are laws for administering justice -- one of the most
sacred and important of sovereign rights and duties, and a
restriction which must materially affect both legislative and
judicial independence. It can scarcely be supposed that Kentucky
would have consented to accept a limited and crippled sovereignty,
nor is it doing justice to Virginia to believe that she
Page 30 U. S. 467
would have wished to reduce Kentucky to a state of vassalage.
Yet it would be difficult if the literal and rigid construction
necessary to exclude her from passing this law were to be adopted;
it would be difficult, I say, to assign her a position higher than
that of a dependant on Virginia. Let the language of the compact be
literally applied, and we have the anomaly presented of a sovereign
state governed by the laws of another sovereign; of one-half the
territory of a sovereign state hopelessly and forever subjected to
the laws of another state. Or a motley multiform administration of
laws under which A would be subject to one class of laws because
holding under a Virginia grant, while B, his next-door neighbor,
claiming from Kentucky, would hardly be conscious of living under
the same government.
If the seventh article of the compact can be construed so as to
make the limitation act of Virginia perpetual and unrepealable in
Kentucky, then I know not on what principle the same rule can be
precluded from applying to laws of descent, conveyance, devise,
dower, courtesy, and in fact every law applicable to real
estate.
It is argued that limitation laws, although belonging to the
lex fori and applying immediately to the remedy, yet
indirectly they effect a complete divesture and transfer of right.
This is unquestionably true, and yet in no wise fatal to the
validity of this law. The right to appropriate a derelict is one of
universal law, well known to the civil law, the common law, and to
all law. It existed in a state of nature, and is only modified by
society according to the discretion of each community. What is the
evidence of an individual's having abandoned his rights or
property? It is clear that the subject is one over which every
community is at liberty to make a rule for itself, and if the State
of Kentucky has established the rule of seven years' negligence to
pursue a remedy, there can be but one question made upon the right
to do so, which is whether, after abstaining from the exercise of
this right for twenty years, it is possible now to impute to her
the want of good faith in the execution of this compact?
Virginia has always exercised an analogous right, not only in
the form of an act of limitation but in requiring actual seating
and cultivation.
In the early settlement of the country, the man who
Page 30 U. S. 468
received a grant of land and failed, at first in three, and
afterwards in five years, to seat and improve it was held to have
abandoned it; it received the denomination of "lapsed land," was
declared to be forfeited (Mercer's Abr.), and anyone might take out
a grant for it. The last member of the eighth article of this
compact distinctly recognizes the existence of the power in
Kentucky to pass similar laws notwithstanding the restrictions of
the seventh article and also the probability of her resorting to
the policy of such laws. It restricts her from passing them for six
years, and what is remarkable, the protection of this restriction
is expressly confined to the citizens of the two states, leaving
the plaintiff below and all others, not citizens of Virginia to an
uncontrolled exercise of such a power. "Forfeiture" is the word
used in the old laws, and "forfeiture" is that used in the compact,
and the term is correctly applied, since it supposes a revesting in
the commonwealth, and it is remarkable how scrupulously Kentucky
has adhered to the Virginian principle in her seven years law,
since the benefit of it is confined to such only as claim under a
grant from the commonwealth, thus literally applying the Virginian
principle of a revesting in the commonwealth and a regranting to
the individual.
Upon the whole, we are unanimously of opinion that the court
below charged the jury incorrectly on this point, and if it stood
alone in the cause, the judgment would be reversed. But as it must
go back, there are two other points raised in the bill of
exceptions which it is necessary to consider here.
The one is upon the sufficiency of the power of attorney
executed by John to Robert Oliver and under which the latter
executed a deed to Barney to revest in him the fee simple of the
land. Upon looking into that instrument, we are satisfied that
although not professional in its style and form, it contains
sufficient words to support the deed, and there was no error in the
decision of the court as to this point.
The other question is one of more difficulty. Upon the face of
the deed from Barney to Oliver and the reconveyance from Oliver to
Barney, there are recited several conveyances of parcels of the
tract granted to Barbor to several individuals, and particularly to
one of 11,000 acres to one Berriman. The case on which the
instruction was prayed makes out that Barney proved Hawkins to have
trespassed within the limits of
Page 30 U. S. 469
the 50,000 acres, but it was insisted that he ought also to have
proved the trespass to be without the limits of the tract shown to
have been conveyed away by himself. On the other side, it was
insisted that the onus lay on Hawkins to prove that his trespass
was within the limits of one of those tracts, and the court charged
in favor of Barney.
This we conceive to be no longer an open question; it has been
solemnly decided in a series of cases in Kentucky that the party,
offering in evidence a conveyance containing such exceptions, is
bound to show that the trespass proved is without the limits of the
land so sold or excepted. 3 Marshall 20; 6 Littell 281; 1 Monroe
142.
The only doubt in this case was as to which of the two parties
this rule applies, since both, and Hawkins first in order, produced
in evidence a deed containing the exceptions. But whether by the
exceptions or by the deed, Hawkins' purpose was answered if he
proved the whole land out of Barney. Not so with Barney, for in the
act of proving the reinvestment of the estate in himself, he proved
it to be with the exceptions mentioned, and therefore the rule
unquestionably applied to him.
From these observations it results that the court below erred in
refusing to instruct the jury according to the prayer of Hawkins;
to-wit,
"That if they believed the evidence, the plaintiff, Barney, had
no right of entry when this suit was instituted, and that unless he
showed that the 11,000 acres recited to be conveyed to Berriman by
Barney did not cover the land in question, he was not entitled to
recover in that suit."
The judgment is reversed, and the cause remanded for a
venire facias de novo.
