Thornton v. Carson. 7 C.

those bonds. The defendant had his election to do either; [600] and upon satisfying the court, at the time he was required to show cause why judgment should not be entered on the award, that he had made such a conveyance as the award prescribed, the court ought to have ordered the suits to have been entered "settled."

If the plaintiff had made the conveyance, and the defendant, who, upon that act being done, was required by the award to transfer five shares in the gold-mine company of North Carolina to the plaintiff, had failed to do so, the court ought to have ordered the suits to be entered "settled." But the plaintiff, having failed to perform the act, upon which alone this transfer was to be made, and the suits were to be entered "settled," became liable to pay the sums awarded by the referees as the equivalent for the property to be conveyed, and consequently the court was right in entering the judgment for the sums awarded.

There is no uncertainty in all this; or at least none which might not be rendered certain by the act of the plaintiff in conformity with the award, and which must not necessarily be certain at the time the court was to render judgment on the award.

The plain meaning of the award is that the plaintiff was to pay the amount of the bonds in suit, unless, by a certain day, he made a conveyance to the defendant, of the property described in the award, in which latter event he was to receive from the defendant, a transfer of five shares in the gold-mine company, and to be discharged from the payment of the money, by an entry to that effect, to be made in the suits referred. But if he refused to make the conveyance, then judgment to be entered against him for the amount of the bonds in suit. If he entitled himself to this entry in his favor, by performing the other branch of the alternative, and the defendant failed to perform his part of the award, then the defendant could receive no benefit from the award, and the suits were to be entered "settled." Whether the conveyance from the plaintiff, and the transfer by the defendant, were made in due form, were questions proper for the consideration of the court.

[ *601 ]

The award is said to be uncertain, because the names of the trustees who are to join in the conveyance, and of the heirs of Thomas Carson, are not stated, nor does the award declare who is to prepare and tender the deed. These, too, were questions proper for the consideration of the court below, but form no objections to the award. It does not appear from the record that the defendant had refused or failed to do every thing which the law required him to perform to entitle him to the judgment of the court, and we must,

Wallen v. Williams. 7 C.

therefore, presume that no delinquency on his part was shown by the plaintiff; that if it was necessary for him to prepare and tender the deed such as the law required, he did so to the satisfaction of the court. If he failed to do that which would warrant the court in entering judgment on the award, it was the duty of the plaintiff to have shown this as cause against entering the judgment, and to have spread all the facts upon the record, which might enable this court to decide whether the court below acted correctly or not.

The award is said to be unreasonable because it requires the plaintiff to get other persons to join in the conveyance to the defendant which he may not be able to do. But surely, if the plaintiff was bound to pay the bonds in suit, or to convey a good title to certain property, which title would not be valid in the opinion of the referees, unless other persons joined in the conveyance, he cannot surely complain that he is ordered to pay the money, unless he executes such a deed as will pass a good title. It is his misfortune if he cannot make the title, but it is no reason why, in that event, he should not pay the money.

There are other causes assigned why the award is unreasonable, but as the facts to prove it unreasonable do not appear in the record, they cannot be noticed by the court, even if such objections would, in law, be sufficient to set aside the award.

Judgment affirmed, with costs.

18 H. 246.

* Wallen v. WILLIAMS.

7 C. 602.

[* 602 ]

ERROR to the circuit court of the United States for the district of East Tennessee, in a suit in equity. The decree of the court below, which was for the complainants, was reversed, because the record did not show that that court had jurisdiction. The objection that a writ of error did not lie in an equity suit was not noticed.

Jones, for the plaintiff in error.

Fairfax's Devisee v. Hunter's Lessee. 7 C.

[ * 603 ]

FAIRFAX'S DEVISEE v. HUNTER'S LESSEE.

7 C. 603.

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.

THIS was a writ of error to the court of appeals of Vir[* 604 ] ginia in an action of ejectment involving the construction* 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 material facts appear in the opinion of the court.

C. Lee, and Jones, for the plaintiff.

Harper, for the defendant.

[ * 618 ]

* STORY, J., delivered the opinion of the court. The first question is, whether Lord Fairfax was proprietor of, and seized of the soil of the waste and unappropriated lands in the northern neck, by virtue of the royal grants, 2 Charles, 2 and 4 James 2, or whether he had mere seignoral rights therein as lord paramount, disconnected from all interest in the land, except of sale or alienation.

The royal charter expressly conveys all that entire tract, territory, and parcel of land, situate, &c., together with the rivers, islands, woods, timber, &c., mines, quarries of stone, and coal, &c., to the grantees and their heirs and assigns, to their only use and behoof, and to no other use, intent, or purpose whatsoever.

It is difficult to conceive terms more explicit than these to vest a title and interest in the soil itself. The land is given, and the exclusive use thereof, and if the union of the title and the exclusive use do not constitute the dominium directum and utile, the complete and absolute dominion in property, it will not be easy to fix on any thing which shall constitute such dominion.

The ground of the objection would seem to have been, that the royal charter had declared that the grantees should hold of the king as tenants in capite, and that it proceeded to declare that the grantees and their heirs and assigns should have power "freely and without

Fairfax's Devisee v. Hunter's Lessee. 7 C.

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 and buy the same," which words were to be considered as restrictive or explanatory of the preceding words of the charter, and as confining the rights granted to the mere authority to sell or alien.

But it is very clear that this clause imposes no restriction or explanation of the general terms of the grant. As the grantees held as tenants in capite of the king, they could not sell or alien without the royal license, and if they did, it was in ancient strictness an

* absolute forfeiture of the land. 2 Ins. 66; and after the [*619] statute 1 Edw. 3, ch. 12, though the forfeiture did not attach, yet a reasonable fine was to be paid to the king upon the alienation. 2 Ins. 67; Staundf. Prer. 27; 2 Bl. Com. 72. It was not until ten years after the first charter, (12 Ch. 2, ch. 24,) that all fines for alienations and tenures of the king in capite were abolished, 2 Bl. Com. 77. So that the object of this clause was manifestly to give the royal assent to alienations without the claim of any fine therefor.

We are therefore satisfied that, by virtue of the charter, and the intermediate grants, Lord Fairfax, at the time of his death, had the absolute property of the soil of the land in controversy, and the acts of ownership exercised by him over the whole waste and unappropriated lands, as stated in the case, vested in him a complete seizin and possession thereof. Even if there had been no acts of ownership proved, we should have been of opinion that as there was no adverse possession, and the land was waste and unappropriated, the legal seizin must be, upon principle, considered as passing with the title.

On this point, we have the satisfaction to find that our view of the title of Lord Fairfax seems incidentally confirmed by the opinion of the court of appeals, of Virginia, in Picket v. Dowdell, 2 Wash. 106; Johnson v. Buffington, 2 Wash. 116; and Curry v. Burns, 2 Wash. 121.

The next question is as to the nature and character of the title which Denny Fairfax took by the will of Lord Fairfax, he being, at the time of the death of Lord Fairfax, an alien enemy.

It is clear, by the common law, that an alien can take lands by purchase, though not by descent; or in other words, he cannot take by the act of law, but he may by the act of the party. This principle has been settled in the year books, and has been uniformly recognized as sound law from that time. 11 Hen. 4, 26; 14 Hen. 4, 20; Co. Litt. 2 b. Nor is there any distinction, whether the purchase be by grant or by devise. In either case, the estate vests

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Fairfax's Devisee v. Hunter's Lessee. 7 C.

[* 620 ] in the alien. Pow. Dev. 316, &c.; Park. * Rep. 144; Co. Litt. 2 b.; not for his own benefit, but for the benefit of the State; or in the language of the ancient law, the alien has the capacity to take, but not to hold lands, and they may be seized into the hands of the sovereign. 11 H. 4, 26; 14 H. 4, 20. But until the lands are so seized, the alien has complete dominion over the same. He is a good tenant of the freehold in a precipe on a common recovery. 4 Leon, 84; Goldsb. 102; 10 Mod. 128. And may convey the same to a purchaser. Sheafe v. O'Neile, 1 Mass. Rep. 256. Though Co. Litt. 52, b., seems to the contrary, yet it must probably mean that he can convey a defeasible estate only, which an office found will divest. It seems, indeed, to have been held that an alien cannot maintain a real action for the recovery of lands. Co. Litt. 129, b.; Thel. Dig. ch. 6; Dyer 2, b.; but it does not then follow that he may not defend, in a real action, his title to the lands against all persons but the sovereign.

We do not find that in respect to these general rights and disabilities, there is any admitted 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. Dyer 2, b.; Brandon v. Nesbitt, 6 T. R. 23; 3 Bos. and Pull. 113; 5 Rob. 102. But as to capacity to purchase, no case has been cited in which it has been denied ; and in The Attorney-General v. Wheedon and Shales, Park. Rep. 267, it was adjudged that a bequest to an alien enemy was good, and, after a peace, might be enforced. Indeed, the common law in these particulars seems to coincide with the Jus Gentium. Bynk. Quest. Pub. Jur., ch. 7; Vattel, b. 2, ch. 8, § 112, 114; Grot. lib. 2, ch. 6, § 16.

It has not been attempted to place the title of Denny Fairfax upon the ground of his being an antenatus, born under a common allegiance before the American revolution, and this has been abandoned upon good reason; for whatever doubts may have been formerly entertained, it is now settled that a British subject born before, cannot, since the Revolution, take lands by descent in the United States. 4 Cranch, 321, Dawson's Lessee v. Godfrey.

[*621] But it has been argued, that although D. Fairfax had capacity to take the lands as devisee, yet he took to the use of the commonwealth only, and had, therefore, but a momentary seizin; that in fact he was but a mere trustee of the estate at will of the commonwealth, and that by operation of law, immediately upon the death of the testator, Lord Fairfax, the title vested in the commonwealth, and left but a mere naked possession in the devisee.