J. J. died in New Hampshire seized of real estate in Rhode
Island, having devised the same to his daughter, an infant. His
executrix proved the will in New Hampshire and obtained a license
from a probate court in that state,
to sell the real estate of the testator for the payment of
debts. She sold the real estate in Rhode Island for that purpose
and conveyed the same by deed, giving a bond to procure a
confirmation of the conveyance by the Legislature
of Rhode Island. The proceeds of the sale were appropriated to
pay the debts
of the intestate. Held that the act of the Legislature of Rhode
Island, which confirmed the title of the purchasers, was valid.
The legislative and judicial authority of New Hampshire were
bounded by the territory of that state, and could not be rightfully
exercised to pass estates lying in another state. The sale of real
estate in Rhode Island by an executrix under a license granted by a
court of probate of New Hampshire was void, and a deed executed by
her of the estate was,
proprio vigore, inoperative to pass
any title of the testator to any lands described therein.
By the laws of Rhode Island, the probate of a will in the proper
probate court is understood to be an indispensable preliminary to
establish the right of the devisee, and then his title relates back
to the death of the testator.
That government can scarcely be deemed to be free where the
rights of property are left solely dependent on the will of the
legislative body, without any restraint. The fundamental maxims of
a free government seem to require that
the rights of personal liberty and private property should be
held sacred. At least no court of justice in this country would be
justified in assuming that the power to violate or disregard them,
a power so repugnant to the common principles of justice and civil
liberty, lurked under any general grant of legislative authority or
ought to be implied from any general expressions of the will of the
people. The people ought not to be presumed to part with rights so
vital to their security and wellbeing without very strong and
direct expressions of such an intention.
It is admitted that the title of an heir by descent in the real
estate of his ancestor, and of a devisee of an estate
unconditionally devised to him, is upon the death of the party
under whom he claims immediately devolved upon him, and he acquires
a vested estate. But this, though true in a general sense, still
leaves his title encumbered with all the liens which have been
created
by the party in his lifetime, or by law at his decease. It is
not an unqualified, though it may be a vested, interest, and it
confers no title, except to what remains after every such lien is
discharged.
By the laws of Rhode Island as well as of all the New England
states, the real estate of intestates stands chargeable with the,
payment of their debts upon a deficiency of assets.
A legislative act is to be interpreted according to the
intention of the legislature apparent upon its face. Every
technical rule as to the construction or force of particular terms
must yield to the clear expression of the paramount will of the
legislature.
Page 27 U. S. 628
This case came before the court upon a bill of exceptions
tendered by the plaintiff in error, they having been defendants
below on the trial of the cause in the circuit court. In that
court, the defendants in error instituted an ejectment for the
recovery of a lot of ground called "The Swamp Lot," lying in North
Providence in the State of Rhode Island, which lot of ground was,
with other lands, devised by Jonathan Jenckes of Winchester in the
State of New Hampshire by his last will and testament, dated 17
January, 1787, to his daughter Cynthia Jenckes, subject to a life
estate therein of his sister Lydia Pitcher, who was then in
possession of the same and so continued until her death on 10
August, 1794.
Jonathan Jenckes was also seized of other lands in North
Providence and in Smithfield, Rhode Island, and also of real estate
in New Hampshire and in Vermont, most of which were devised to his
daughter Cynthia. A small part of his New Hampshire lands was
devised for the payment of his debts. Cynthia Jenckes his wife, and
Arthur Fenner of Providence, Rhode Island, were appointed the
executors of his will. Cynthia Jenckes alone qualified as
executrix. The testator died at Winchester in New Hampshire on 31
January, 1787, a few days after making his will.
No probate of the will of Jonathan Jenckes was made in the State
of Rhode Island.
The plaintiffs in the ejectment are the heirs of Cynthia
Jenckes, and claim the premises under the devise to her, she having
afterwards intermarried with Joel Hastings.
The title of the plaintiff in error was as follows:
Cynthia Jenckes the widow and executrix of Jonathan Jenckes,
having been qualified in New Hampshire to act as executrix, on 18
August, 1790, returned to the Probate Court of the County of
Cheshire an inventory of the real and personal estate in New
Hampshire and Vermont amounting to �1792 12s. 9d. A commission of
insolvency was afterwards granted by the probate court, and on 3
January, 1792, the commissioners reported the whole amount of debts
due by the estate, of which �6,920 19s. were due to citizens of
Rhode Island. In February, 1792, the executrix
Page 27 U. S. 629
settled her account in the probate court, and a balance of �15
7s. 7d. remained in her hands, "the guardian of the heirs appearing
and consenting" to the settlement.
On 22 July, 1790, a license to sell the real estate of Jonathan
Jenckes, to pay and discharge the debts of the estate was granted
by the Probate Court of Cheshire County, and on 12 November, 1791,
Cynthia Jenckes, as executrix of Jonathan Jenckes, sold and
conveyed by deed to Moses Brown and Oziel Wilkinson, the reversion
of the three-acre Swamp lot, the premises in dispute. The other
real estate in Rhode Island was also sold and conveyed by her at
the same time.
On the day the sale was made, Cynthia Jenckes executed a bond to
the purchasers reciting that by virtue of the license and in
pursuance of its directions, a sale had been made of all the estate
which belonged to the testator in the Towns of Providence,
Smithfield, and North Providence, in the County of Providence and
State of Rhode Island, and that she had received pay for the
same,
"and whereas some doubts may arise whether a sale and conveyance
so made, by virtue of the license of the judge of probate in the
State of New Hampshire, will give a good and sufficient title to
lands and tenements lying in the State of Rhode Island and
Providence Plantations, now, for the clearing of all doubts
respecting the premises, I, the said Cynthia Jenckes, in my said
capacity, do covenant, and engage for myself, my heirs, executors
and administrators, to and with the said Moses Brown, Oziel
Wilkinson, and Thomas Arnold, their heirs, executors, and
administrators, that I will procure an act to be passed by the
Legislature of the State of Rhode Island ratifying and confirming
the title by me granted and conveyed as aforesaid, to them and
their heirs and assigns forever, or in failure thereof, that I will
repay the purchase money which I have received for the same, with
lawful interest and such reasonable costs and damages which they
may or shall thereby sustain as shall sufficiently indemnify, and
save them free from loss in the premises to all intents and
purposes."
At the June sessions of the legislature, Cynthia Jenckes,
Page 27 U. S. 630
by her attorney regularly constituted, petitioned the
Legislature of the State of Rhode Island, representing
"That the personal estate of the said Jonathan Jenckes being
insufficient to pay his debts, your petitioner obtained authority
from the honorable John Hubbard, Judge of Probate for the County of
Cheshire in said State of New Hampshire, where the said Jonathan
last lived, to make sale of so much of the real estate of the said
Jonathan Jenckes as should be sufficient for the purpose of paying
his debts; that your petitioner, in pursuance of said authority,
sold and conveyed a part of said deceased's estate situate in this
state; that for the said estate your petitioner received a part of
the consideration money, and the residue thereof is to be paid when
the deed executed by your petitioner shall be ratified by this
assembly; your petitioner would further show that the residue of
the said purchase money is absolutely necessary to pay the debts
due from said estate and which are now running in interest. She
therefore humbly prays your honors will be pleased to ratify and
confirm the sale aforesaid, being by a deed made by your petitioner
unto Moses Brown and others, on 12 November, A.D. 1791, for the
consideration of five hundred and fifty dollars; whereby your
petitioner conveyed the right of redemption to a certain mortgaged
estate, and also other lands in said deed mentioned, situate in
Smithfield and North Providence."
Whereupon the legislature passed the following act:
"
State of Rhode Island, sc."
"At June session of the General Assembly, A.D. 1792."
"Whereas, Cynthia Jenckes, late of Winchester in the State of
New Hampshire, now of the State of Vermont, executrix of the last
will and testament of Jonathan Jenckes, late of Winchester
aforesaid, deceased, preferred a petition and represented unto this
assembly, that his personal estate being insufficient for the
payment of his debts, she obtained authority from the honorable
John Hubbard, Esq., the Judge of Probate for the County of Cheshire
in the State of New Hampshire aforesaid, where the said Jonathan
last lived, to make sale of so much of the real estate of the said
Jonathan Jenckes, as should be sufficient to pay his debts;
that
Page 27 U. S. 631
by virtue of said authority, she made sale to Moses Brown and
others of part of the said real estate situate within this state;
that she hath received part of the consideration money, and the
remainder is to be paid when the sale aforesaid shall be ratified
by this assembly, and that the residue of said purchase money is
necessary for the payment of said debts, and thereupon, the said
Cynthia prayed this assembly to ratify and confirm the sale
aforesaid, which was made by a deed executed by her on 12 November
last past, for the consideration of five hundred and fifty dollars,
whereby she conveyed the right of redemption to a certain mortgaged
estate, and also other lands in the said deed mentioned, situate in
Smithfield and North Providence."
"On due consideration whereof it is enacted by this general
assembly and by the authority thereof that the prayer of the said
petitioner be granted and that the said deed be, and the same is
hereby ratified and confirmed so far as respects the conveyance of
any right or interest in the estate mentioned in said deed, which
belonged to the said Jonathan Jenckes at the time of his
decease."
A judgment
pro forma, for the plaintiffs, was entered
in the circuit court, and this writ of error was sued out.
Page 27 U. S. 653
MR. JUSTICE STORY delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the district of
Rhode Island in a case where the plaintiff in error was defendant
in the court below. The original action was an ejectment, in the
nature of a real action, according to the local practice, to
recover a parcel of land in North Providence in that state. There
were several pleas pleaded of the statute of limitations, upon
which it is unnecessary to
Page 27 U. S. 654
say anything, as the questions thereon have been waived at the
bar. The cause was tried upon the general issue and, by consent of
the parties, a verdict was taken for the plaintiffs and a bill of
exceptions allowed upon a
pro forma opinion given by the
court in favor of the plaintiffs to enable the parties to bring the
case before this Court for a final determination. The only
questions which have been discussed at the bar arise under this
bill of exceptions.
The facts are somewhat complicated in their details, but those
which are material to the points before us may be summed up in a
few words.
The plaintiffs below are the heirs at law of Cynthia Jenckes, to
whom her father, Jonathan Jenckes, by his will in 1787, devised the
demanded premises in fee, subject to a life estate then in being,
but which expired in 1794. By his will, Jonathan Jenckes appointed
his wife Cynthia and one Arthur Fenner, executrix and executor of
his will. Fenner never accepted the appointment. At the time of his
death, Jonathan Jenckes lived in New Hampshire, and after his death
his widow duly proved the will in the proper court of probate in
that state, and took upon herself the administration of the estate
as executrix. The estate was represented insolvent, and
commissioners were appointed in the usual manner to ascertain the
amount of the debts. The executrix, in July, 1790, obtained a
license from the judge of probate in New Hampshire to sell so much
of the real estate of the testator as, together with his personal
estate, would be sufficient to pay his debts and incidental
charges. The will was never proved or administration taken out in
any probate court of Rhode Island. But the executrix, in November,
1791, sold the demanded premises to one Moses Brown and Oziel
Wilkinson, under whom the defendant here claims, by a deed, in
which she recites her authority to sell as aforesaid and purports
to act as executrix in the sale. The purchasers, however, not being
satisfied with her authority to make the sale, she entered into a
covenant with them on the same day, by which she bound herself to
procure an act of the Legislature of Rhode Island ratifying and
confirming the title so granted, and on failure thereof
Page 27 U. S. 655
to repay the purchase money, &c. She accordingly made an
application to the Legislature of Rhode Island for this purpose,
stating the facts in her petition, and thereupon an act was passed
by the legislature, at June session 1792, granting the prayer of
her petition and ratifying the title. The terms of this act we
shall have occasion hereafter to consider. In February, 1792, she
settled her administration account in the probate court in New
Hampshire, and thereupon the balance of �15 7s. 7d. only remained
in her hands for distribution.
Such are the material facts, and the questions discussed at the
bar ultimately resolve themselves into the consideration of the
validity and effect of the act of 1792. If that act was
constitutional and its terms, when properly construed, amount to a
legal confirmation of the sale and the proceedings thereon, then
the plaintiff is entitled to judgment, and the judgment below was
erroneous. If otherwise, then the judgment ought to be
affirmed.
It is wholly unnecessary to go into an examination of the
regularity of the proceedings of the probate court in New
Hampshire, and of the order or license there granted to the
executrix to sell the real estate of the testator. That cause could
have no legal operation in Rhode Island. The legislative and
judicial authority of New Hampshire were bounded by the territory
of that state, and could not be rightfully exercised to pass
estates lying in another state. The sale, therefore, made by the
executrix to Moses Brown and Oziel Wilkinson, in virtue of the said
license was utterly void, and the deed given thereupon was,
proprio vigore, inoperative to pass any title of the
testator to any lands described therein. It was a mere nullity.
Upon the death of the testator, his lands in Rhode Island, if
not devised, were cast by descent upon his heirs, according to the
laws of that state. If devised, they would pass to his devisees
according to the legal intendment of the words of the devise. But,
by the laws of Rhode Island, the probate of a will in the proper
probate court is understood to be an indispensable preliminary to
establish the right of the devisee, and then his title relates back
to the death of the
Page 27 U. S. 656
testator. No probate of this will has ever been made in any
court of probate in Rhode Island, but that objection is not now
insisted on, and if it were and the act of 1792 is to have any
operation, it must be considered as dispensing with or superseding
that ceremony.
The objections taken by the defendants to this act are, in the
first place, that it is void as an act of legislation because it
transcends the authority which the Legislature of Rhode Island can
rightfully exercise under its present form of government. And in
the next place that it is void as an act of confirmation because
its terms are not such as to give validity to the sale and deed, so
as to pass the title of the testator, even if it were otherwise
constitutional.
The first objection deserves grave consideration from its
general importance. To all that has been said at the bar upon the
danger, inconvenience, and mischiefs of retrospective legislation
in general and of acts of the character of the present in
particular this Court has listened with attention and felt the full
force of the reasoning. It is an exercise of power, which is of so
summary a nature, so fraught with inconvenience, so liable to
disturb the security of titles and to spring by surprise upon the
innocent and unwary to their injury and sometimes to their ruin,
that a legislature invested with the power can scarcely be too
cautious or too abstemious in the exertion of it.
We must decide this objection, however, not upon principles of
public policy, but of power, and precisely as the state court of
Rhode Island itself ought to decide it.
Rhode Island is the only state in the Union which has not a
written constitution of government containing its fundamental laws
and institutions. Until the Revolution in 1776, it was governed by
the charter granted by Charles II in the fifteenth year of his
reign. That charter has ever since continued in its general
provisions to regulate the exercise and distribution of the powers
of government. It has never been formally abrogated by the people,
and, except so far as it has been modified to meet the exigencies
of the Revolution, may be considered as now a fundamental law. By
this charter, the power to make laws is granted to the
Page 27 U. S. 657
general assembly in the most ample manner,
"so as such laws, &c., be not contrary and repugnant unto,
but as near as may be agreeable to the laws, &c., of England,
considering the nature and constitution of the place and people
there."
What is the true extent of the power thus granted must be open
to explanation as well by usage as by construction of the terms in
which it is given. In a government professing to regard the great
rights of personal liberty and of property, and which is required
to legislate in subordination to the general laws of England, it
would not lightly be presumed that the great principles of Magna
Charta were to be disregarded, or that the estates of its subjects
were liable to be taken away without trial, without notice, and
without offense. Even if such authority could be deemed to have
been confided by the charter to the General Assembly of Rhode
Island as an exercise of transcendental sovereignty before the
Revolution, it can scarcely be imagined that that great event could
have left the people of that state subjected to its uncontrolled
and arbitrary exercise. That government can scarcely be deemed to
be free where the rights of property are left solely dependent upon
the will of a legislative body, without any restraint. The
fundamental maxims of a free government seem to require that the
rights of personal liberty and private property should be held
sacred. At least no court of justice in this country would be
warranted in assuming, that the power to violate and disregard them
-- a power so repugnant to the common principles of justice and
civil liberty lurked under any general grant of legislative
authority, or ought to be implied from any general expressions of
the will of the people. The people ought not to be presumed to part
with rights so vital to their security and wellbeing without very
strong and direct expressions of such an intention. In
Terret v.
Taylor, 9 Cranch 43, it was held by this Court that
a grant or title to lands once made by the legislature to any
person or corporation is irrevocable and cannot be reassumed by any
subsequent legislative act, and that a different doctrine is
utterly inconsistent with the great and fundamental principle of a
republican government and with the right of the citizens to the
free enjoyment of their property
lawfully
Page 27 U. S. 658
acquired. We know of no case in which a legislative act to
transfer the property of A. to B. without his consent has ever been
held a constitutional exercise of legislative power in any state in
the Union. On the contrary, it has been constantly resisted as
inconsistent with just principles by every judicial tribunal in
which it has been attempted to be enforced. We are not prepared,
therefore, to admit that the people of Rhode Island have ever
delegated to their legislature the power to divest the vested
rights of property, and transfer them without the assent of the
parties. The counsel for the plaintiffs have themselves admitted
that they cannot contend for any such doctrine.
The question then arises whether the act of 1792 involves any
such exercise of power. It is admitted that the title of an heir by
descent in the real estate of his ancestor, and of a devisee in an
estate unconditionally devised to him, is, upon the death of the
party under whom he claimed, immediately devolved upon him and he
acquires a vested estate. But this, though true in a general sense,
still leaves his title encumbered with all the liens which have
been created by the party in his lifetime or by the law at his
decease. It is not an unqualified, though it be a vested, interest,
and it confers no title except to what remains after every such
lien is discharged. In the present case, the devisee under the will
of Jonathan Jenckes without doubt took a vested estate in fee in
the lands in Rhode Island. But it was an estate, still subject to
all the qualifications and liens which the laws of that state
annexed to those lands. It is not sufficient to entitle the heirs
of the devisee now to recover to establish the fact that the estate
so vested has been divested, but that it has been divested in a
manner inconsistent with the principles of law.
By the laws of Rhode Island, as indeed by the laws of the other
New England states (for the same general system pervades them on
this subject), the real estate of testators and intestates stands
chargeable with the payment of their debts upon a deficiency of
assets of personal estate. The deficiency being once ascertained in
the probate court, a license is granted by the proper judicial
tribunal, upon the
Page 27 U. S. 659
petition of the executor or administrator, to sell so much of
the real estate as may be necessary to pay the debts and incidental
charges. The manner in which the sale is made is prescribed by the
general laws. In Massachusetts and Rhode Island, the license to
sell is granted, as matter of course, without notice to the heirs
or devisees, upon the mere production of proof from the probate
court of the deficiency of personal assets. And the purchaser at
the sale, upon receiving a deed from the executor or administrator,
has a complete title and is in immediately under the deceased, and
may enter and recover the possession of the estate notwithstanding
any intermediate descents, sales, disseizins, or other transfers of
title or seizin. If, therefore, the whole real estate be necessary
for the payment of debts and the whole is sold, the title of the
heirs or devisees is, by the general operations of law, divested
and superseded, and so,
pro tanto, in case of a partial
sale.
From this summary statement of the laws of Rhode Island it is
apparent that the devisee under whom the present plaintiffs claim
took the land in controversy subject to the lien for the debts of
the testator. Her estate was a defeasible estate, liable to be
divested upon a sale by the executrix in the ordinary course of law
for the payment of such debts, and all that she could rightfully
claim would be the residue of the real estate after such debts were
fully satisfied. In point of fact, as it appears from the evidence
in the case, more debts were due in Rhode Island than the whole
value for which all the estate there was sold, and there is nothing
to impeach the fairness of the sale. The probate proceedings
further show that the estate was represented to be insolvent, and
in fact it approached very near to an actual insolvency. So that
upon this posture of the case, if the executrix had proceeded to
obtain a license to sell, and had sold the estate according to the
general laws of Rhode Island, the devisee and her heirs would have
been divested of their whole interest in the estate in a manner
entirely complete and unexceptionable. They have been divested of
their formal title in another manner, in favor of creditors
entitled to the estate, or rather their formal title has been made
subservient to the paramount title of the creditors.
Page 27 U. S. 660
Some suggestions have been thrown out at the bar intimating a
doubt whether the statutes of Rhode Island giving to its courts
authority to sell lands for payment of debts extended to cases
where the deceased was not, at the time of his death, an inhabitant
of the state. It is believed that the practical construction of
these statutes has been otherwise. But it is unnecessary to
consider whether that practical construction be correct or not,
inasmuch as the laws of Rhode Island in all cases make the real
estate of persons deceased chargeable with their debts, whether
inhabitants or not. If the authority to enforce such a charge by a
sale be not confided to any subordinate court, it must, if at all,
be exercised by the legislature itself. If it be so confided, it
still remains to be shown that the legislature is precluded from a
concurrent exercise of power.
What then are the objections to the act of 1792? First, it is
said that it divests vested rights of property. But it has been
already shown that it divests no such rights except in favor of
existing liens of paramount obligation, and that the estate was
vested in the devisee expressly subject to such rights. Then again
it is said to be an act of judicial authority which the legislature
was not competent to exercise at all, or if it could exercise it,
it could be only after due notice to all the parties in interest
and a hearing and decree. We do not think that the act is to be
considered as a judicial act, but as an exercise of legislation. It
purports to be a legislative resolution, and not a decree. As to
notice, if it were necessary (and it certainly would be wise and
convenient to give notice where extraordinary efforts of
legislation are resorted to which touch private rights), it might
well be presumed, after the lapse of more than thirty years and the
acquiescence of the parties for the same period, that such notice
was actually given. But by the general laws of Rhode Island upon
this subject, no notice is required to be or is in practice given
to heirs or devisees in cases of sales of this nature, and it would
be strange if the legislature might not do without notice the same
act which it would delegate authority to another to do without
notice. If the legislature had authorized a future sale by the
Page 27 U. S. 661
executrix for the payment of debts, it is not easy to perceive
any sound objection to it. There is nothing in the nature of the
act which requires that it should be performed by a judicial
tribunal or that it should be performed by a delegate, instead of
the legislature itself. It is remedial in its nature, to give
effect to existing rights.
But it is said that this is a retrospective act which gives
validity to a void transaction. Admitting that it does so, still it
does not follow that it may not be within the scope of the
legislative authority in a government like that of Rhode Island if
it does not divest the settled rights of property. A sale had
already been made by the executrix under a void authority, but in
entire good faith (for it is not attempted to be impeached for
fraud), and the proceeds, constituting a fund for the payment of
creditors, were ready to be distributed as soon as the sale was
made effectual to pass the title. It is but common justice to
presume that the legislature was satisfied that the sale was
bona fide and for the full value of the estate. No
creditors have ever attempted to disturb it. The sale then was
ratified by the legislature, not to destroy existing rights, but to
effectuate them, and in a manner beneficial to the parties. We
cannot say that this is an excess of legislative power unless we
are prepared to say that in a state not having a written
constitution, acts of legislation, having a retrospective
operation, are void as to all persons not assenting thereto, even
though they may be for beneficial purposes and to enforce existing
rights. We think that this cannot be assumed as a general principle
by courts of justice. The present case is not so strong in its
circumstances as that of
Calder v. Bull,
3 Dall. 386, or
Rice v. Parkman, 16 Mass. 226, in both of
which the resolves of the legislature were held to be
constitutional.
Hitherto the reasoning of the Court has proceeded upon the
ground that the act of 1792 was in its terms sufficient to give
complete validity to the sale and deed of the executrix, so as to
pass the testator's title. It remains to consider whether such is
its predicament in point of law.
For the purpose of giving a construction to the words of the
act, we have been referred to the doctrine of confirmation
Page 27 U. S. 662
at the common law in deeds between private persons. It is said
that the act uses the appropriate words of a deed of confirmation,
"ratify and confirm," and that a confirmation at the common law
will not make valid a void estate or act, but only one which is
voidable. It is in our judgment wholly unnecessary to enter upon
any examination of this doctrine of the common law, some of which
is of great nicety and strictness, because the present is not an
act between private persons having interests and rights to be
operated upon by the terms of their deed. This is a legislative
act, and is to be interpreted according to the intention of the
legislature, apparent upon its face. Every technical rule as to the
construction or force of particular terms must yield to the clear
expression of the paramount will of the legislature. It cannot be
doubted that an act of Parliament may by terms of confirmation make
valid a void thing if such is its intent. The cases cited in
Plowden 399, in Comyn's Dig. Confirmation, D, and in 1 Roll.Abridg.
583, are directly in point. The only question then is what is the
intent of the legislature in the act of 1792? Is it merely to
confirm a void act, so as to leave it void, that is to confirm it
in its infirmity? or is it to give general validity and efficacy to
the thing done? We think there is no reasonable doubt of its real
object and intent. It was to confirm the sale made by the
executrix, so as to pass the title of her testator to the
purchasers. The prayer of the petition, as recited in the act, was
that the legislature would "ratify and confirm the sale aforesaid,
which was made by a deed executed by the executrix, &c." The
object was a ratification of the sale, and not a mere ratification
of the formal execution of the deed. The language of the act is
"on due consideration whereof it is enacted, &c., that the
prayer of the said petitioner be granted and that the deed be and
the same is hereby ratified and confirmed so far as respects the
conveyance of any right or interest in the estate mentioned in said
deed, which belonged to the said Jonathan Jenckes at the time of
his decease."
It purports, therefore, to grant the prayer, which asks a
confirmation of the sale, and confirms the deed, as a conveyance of
the right and interest of
Page 27 U. S. 663
the testator. It is not an act of confirmation by the owner of
the estate, but an act of confirmation of the sale and conveyance
by the legislature in its sovereign capacity.
We are therefore all of opinion that the judgment of the
circuit court ought to be reversed and that the cause be remanded
with directions to the court to award a venire facias de
novo.
