This is an action of ejectment brought by the appellant against the appellee for a lot in the town of Winchester. The principal object of the suit is, to try the title of the appellant to a rent of five shillings per annum alledged to be due on the said lot, and claimed by him as grantee under Denny Fairfax. The said Fairfax having in his deed expressly reserved all quit-rents, the appellant has no right to recover in this case, if this court be of opinion, that the rent in question is a quit-rent. Being clearly of opinion, that that rent is a quit-rent, I shall confine my observations principally to that point, although other topics were discussed at large in the argument.
. It is expressly agreed in the case before us, that the two shillings per hundred acres reserved on lands granted in the Northern Neck, and on those granted in the other parts of Virginia, before the revolution, was, throughout those territories respectively, denominated a quit-rent. It is also admitted by the counsel on all sides, in this argument, that those sums are and "were quit-rents; although Mr. Call, counsel for the appellant, has made a complete felo de se of his admission, by bringing us to the test of the English idea of a quit-rent. He contends, under that standard, and refers to 2 Black. Com. 42, that it is essential to a quit-rent that the land should be held under a manor, and also that, on payment of the rent, the tenant should go quit of all former services.
If this be the true standard, then the said two shilling rent is not a legal quit-rent: Then there never were any quit
That understanding has thrown into the class of quit-rents, those rents reserved to the king, or proprietor, as the case may be, on an absolute grant of waste land; on a grant, too, for which an original price was paid, generally denominated composition money, and on which a trifling rent is reserved, as a mere feudal acknowledgment of tenure. This understanding was universal as it related to the two shillings rent, because that rent was also universal, throughout the whole country. The rent of five shillings in question was only, not universally, so denominated, because it was in itself local and particular. It was not known in remote places that such a rent existed, but so far as such knowledge did extend, viz. in and about the town of Winchester, the rent in question is agreed to have been generally denominated a quit-rent by the people, and sometimes so denominated by lord Fairfax’s agents. Had towns and grants of this description been generally established throughout that territory, there is no question, but that this rent would have been as universally denominated a quit-rent, as the rent of two shillings per hundred acres on lands.
If there be any general passages in our laws, or in any treatises upon our laws, which seem to confine the idea of quit-rent to the two shillings rent, we must attribute it to the same want of knowledge of the existence of this local rent of five shillings. But this court cannot now plead such ignorance in excuse. The case is properly brought before us; and we may try this rent by the same standard and the same principles as apply to the general rent of two shillings per 100 acres.
The rent before us entirely corresponds with the two shillings rent, payable on lands in the Northern Neck, in all its essential features? For 1st. The lot granted in this case is expressly stated in the deed to have been “ heretofore waste and ungranted land.” It is also further agreed, that there is no survey extant of that land prior to the establishment of the town of Winchester. The act of assembly on that subject does not pretend, that that land was ever before granted, or appropriated; and the aid of the legislature was only obtained for the purpose of conferring, on the grantees
I touch not those cases in which lord Fairfax stood in any other relation, than merely as lord of the fee. I touch not those, in which he had become a private proprietor. The general assembly of Virginia, anxious to abolish feudal and perpetual rents, due to the government of Virginia and to lord Fairfax, as soon as his rights had fallen into the hands of aliens, respected, as beyond their reach, that perpetual revenue which may have been, in a multitude of instances, reserved by one individual from another, on grants of land held by private ownership.
I understand that this rent is now to be recovered on the principle that it is a ground rent: but I call on this court to shew any instance of a ground rent, in which the lessor of the premises had not acquired a private right to the soil. Lord Fairfax was fully sensible of the distinction which existed between his proprietary rights and his private rights of the soil. It was his uniform practice to make a conveyance of lands in fee in the usual form to some friend, and take back a re-conveyance thereof, when he meant to acquire the private fee simple property in them. The case before us expressly finds that this was done in relation to the two manors, and to the lot No. 18, in the town of Winchester. In relation to the manors, this might (but for the uniform practice aforesaid) have probably been dispensed withj for the leases granted to the tenants thereof convey not the absolute property of the soil, and carry on the face of them, almost in every line, strong badges of private ownership on the part of the lessor. No man can read those leases, and hesitate for a moment to believe that lord Fairfax’s intention was to convert the soil of those manors into private property; yet that was not sufficient in the opinion of the proprietor: those lands also were subjected by him to the uniform process of a conveyance and re-conveyance. But not only those conveyances, but those in relation to lot No. 18, in the addition to the town of Winchester, shew strongly lord Fairfax’s practice and sense on this subject. If this court should now adjudge the lot in question, or the rent
Were it permitted to me to go out of this record, I would refer to the 6th finding in the case of Hunter v. Fairfax, formerly argued before this court, wherein Mr. Fairfax and the other party agreed, “ That lord Fairfax died seized in fee of sundry tracts of land in the county of Frederick, and other counties in the Northern Neck, containing altogether 300,000 acres, which had been granted and conveyed by him to B. Martin in fee, upon the same terms as other lands were conveyed and granted by him in fee as aforesaid; which lands were soon thereafter re-conveyed, by the said Martin, unto him in fee.”
This word altogether, taken in connexion too with the large number of acres mentioned, strongly imports that lord Fairfax had the fee simple property in no lands in the Northern Neck, which had not undergone that process. But however that may be, as the appellant does not lay claim to all the lands, and the rents due thereon, existing in the Northern Neck, but only to such as bad become the private property of lord Fairfax, or his ancestors, and has not shewn in his case, any other process by which the private property of the soil could be or was acquired by lord Fairfax than such conveyance and re-conveyance, I am perfectly warranted in saying, upon the case before us, that no other process can be known to us on this subject, how many others soever may exist (if any such in fact do exist) or rest within the private knowledge of this court. We are to try this cause upon the facts agreed between the parties, and not upon facts which may be alledged, or may in fact exist, but do not exist upon this record. I presume also
Being clearly of opinion, upon the case before us, that the private property of the soil was not, nor could be acquired by lord Fairfax, except by conveyance and re-conveyance, I can take no notice of any alledged acquisition by survey, even were that survey for lord Fairfax’s own use. All the notice of such surveys that I can now take is, that in relation to the surveys of the lots in Winchester, lord Fairfax has admitted that they did not vest the private property of the soil in him. He has admitted this, by making and taking a conveyance and re-conveyance of the lot No. 18, in said town, in order to vest in him such property therein. He has admitted that the surveys of manors, though confessedly made for his own use, were not adequate to such purpose, by using a similar process in relation to them. Can we therefore say, upon this record, that the private right of soil was acquirable in any instance by a mere survey ? The act of compromise (to be hereafter more particularly noticed) states indeed, hypothetically, that this might be done. I will only add at present, that whenever a case shall occur, which will state facts to justify that inference, that act shall receive from me a correspondent construction : but the general and hypothetical words of an act, grounded perhaps on the representation of an interested party, cannot make that to have antecedently existed, which
But whatever may be the case of the survey confessedly made for lord Fairfax’s own use, the survey of the lots in addition to the town of Winchester, was not of that character. It was for the use of purchasers who were to pay a high rate of composition upon the grant of the soil. Lord Fairfax indeed acquired a right of soil in the lot No. 18; but that not by virtue of the survey, but by virtue of the conveyance and re-conveyance before, mentioned.
I have said that the act of 17f52 related not at all to any rights of property respecting the lot in question. It only gave to the purchasers of lots the privileges enjoyed by the citizens of other towns. When in the second section of that act lord Fairfax is called the proprietor of the lot added to the town, it is only in the sense of general proprietor of the Northern Neck. It is not in the sense of private owner of the soil. This is incontestibly proved by the finding in the case, that the lot in question was waste and ungranted land prior to the grant to the person under whom the appellee claims. This act of assembly is therefore entirely incompetent to shew, that the private right of soil in the lot in question was ever acquired by lord Fairfax.
If lord Fairfax, anxious to accelerate the settlement of his territory, instead of waiting until private adventurers had found and entered for waste lands, had himself set apart and surveyed into small tracts, a large tract of waste land, and invited individuals to take grants thereof, paying a higher rate of composition and of quit-rent, in consideration of the trouble he had been at in making the said location and survey, can it be questioned for a moment that the grantees of those lands would have holden on a common footing with other grantees in his territory? But this mode is no how different from the one before us, except that the latter relates to a lot of ground, and the former to a tract; a circumstance certainly immaterial.
Having compared the grant in question with the general grants of waste lands in the Northern Neck, and found in them a perfect correspondence, I will now briefly compare it with the leases in the manors stated in the case, and which are confessedly private property, and I believe we shall find no manner of similitude between them. The lessees of the manors have paid no original price or composition therefor: they have acquired no absolute property therein, but only the use thereof during a term. The rents payable therefor are 20 shillings or 40 shillings per hundred acres per annum respectively: a sum too great for a mere feudal acknowledgment of tenure, and bearing a good proportion, perhaps, at the time of the grants, to the yearly value of the land. Besides, this manor land was not only converted into private property by the process before mentioned, but the lessees in all their covenants bear strongly
If any stress is laid on the finding in the case, “ that the grants of all lands were uniformly alike, except as to grants of lots in places laid off for towns,” it may be answered, that such variation is rendered necessary, by the difference of the subject; such as the different rates of composition and rents, and the different conditions and covenants necessary to be obtained in the two instruments. If any essential and substantial variation existed between the two grants, going to the merits of this case, it was the duty of the appellant to have shewn them to the court in his case. The variation stated in this finding, is satisfied by the immaterial variations just mentioned, and which are discernable from an inspection of the grants themselves as set out in the case. That inspection does not exhibit any essential and substantial variation going to the merits of the case : the appellant himself has not stated, or even pointed out, any such; and we cannot make his case better than he himself has made it.
I come now to consider some of the acts of assembly on this subject. ■
The acts of October 1777, ch. 2, and May 1779, ch. 13, abolished quit-rents throughout Virginia, except in the Northern Neck. They did not invade the quit-rents of lord Fairfax, because he was a citizen, although every reason assigned for the abolition equally applied to his quit-rents. They did not attempt such invasion until it was ascertained, or at least believed, that those quit-rents had devolved on alien enemies. Then they did sequester them, and ultimately confiscate them.
Those acts did abolish the quit-rents in the residuary part of Virginia, after expressly premising that it was derogatory to our people to hold their lands “ subject to any servile, feudal, or precarious tenure, and to prevent the danger to a free state' from perpetual revenue.” Acts 1779, ch. 13, p. 98. Here then is a strong legislative exposition of what is meant by a quit-rent. It is a rent which is servile, feudal, and perpetual.
When the legislature of Virginia, by the act of 1779, discharged all “proprietors of lands” not only from quit-rents, but from all other “ reservations and conditions in the patents or grants of land from the crown of England,” extending even to a discharge from the condition of cultivating part of the land granted, would not this abolition equally have extended to lots in town, (if there were any such,) granted
The analogy is very strong between what the assembly actually did by the acts of 1777 and 1779, in relation to Virginia in general, and what they would have done at the same time in relation to the Northern Neck, had they not been restrained by a respect for lord Fairfax’s rights as a citizen. The abolition, however, effected by those acts, has been extended to the Northern Neck, since the death of lord Fairfax.
If the act of 1777, ch. 2, which gave credit to the people of the Northern Neck for their quit-rents, as part of the public tax, has, by the terms of it, seemed to confine quit-rents to the rent of two shillings per 100 acres on land, is there a single reason why this indulgence should not have been equally extended to the owners of the lots in question ? Are we not to consider it, at most, as an omitted case; as a case only omitted on account of the locality of the rent, and the ignorance of its existence, on the part of the legislature ?
But if this be relied on as a legislative exposition of a quit-rent; if this court is not permitted to say, that where there is the same reason, there is the same law, shall not that body be permitted to correct itself? Shall not other legislative expositions be equally respected ? In the very same clause of that very act, the legislature has corrected itself, by defining a quit-rent to be a senile, feudal and perpetual rent. This same idea is also kept up in the act of 1779, as before stated ; and in the act of 1782, ch. 8, the citizens of the Northern Neck are credited for their quit-rents, by
I have asked this honourable court, whether it will, by a reversal of the judgment before us, revive upon the people of the Northern Neck, a partial proprietorship. I will go further and ask, whether they will do this, notwithstanding the renunciation of such proprietorship by Mr. Fairfax, under whom the appellant claims ? That renunciation is explicitly contained, so far at least as it respected the vacant lands, in the agreement stated in the act of compromise of 1796. The renunciation did not, indeed, extend expressly to the obsolete and derelict claim of quit-rents, for reasons presently to be assigned or alluded to. That renunciation is also founded upon a full and valuable consideration; upon the grant by the commonwealth of Virginia, of at least 300,000 acres of land, claimed by Mr. Fairfax, as his private property; but which, it is notorious, would have been withheld from him, (but for the compromise aforesaid,) by
According to ordinary calculation, it would have been supposed that that renunciation, and the act of assembly founded thereon, had given a death blow to the proprietary rights in the Northern Neck. Exclusive of the proprietary right to vacant lands, there is only one other aspect, in which it is possible for such proprietorship to be revived, or contemplated ; and this, it seems, is to be the ground work on which this superstructure is now to be raised. The trifling sum now in dispute, like the foothold required by Archimides, is to produce consequences which none can foresee, or estimate. Notwithstanding that the act of 1796, did not deign to comprehend quit-rents in the renunciation therein contained on the part of Mr. Fairfax; notwithstanding the general assembly pretermitted this most favourable opportunity of effectuating such purpose; for certainly under the then circumstances of the case, the rapacity of Mr. Fairfax, or his grantees, might have been well satisfied with the enormous grant of 300,000 acres of perhaps the best lands in the Northern Neck; we are now to be assailed; a proprietorship is now to be resuscitated on this obsolete and exploded, ground of quit-rent!
I will only add upon this subject, that the omission to comprehend quit-rents in the renunciation contained in the act of 1796, arose most probably from its being believed to be a mere act of supererogation. That belief might have arisen (to say nothing of the merits of the case) not only from the non-claim of those quit-rents on the part of Mr. Fairfax when he was claiming all the rest of lord Fairfax’s estate, but also (among other minor circumstances) from the explicit disavowal of lord Fairfax’s right thereto, made in the Virginia convention of 1788, among others, by the very able gentleman who afterwards, as a purchaser under Mr. Fairfax, negotiated the compromise with the general assem
As the claim to the two shillings rent, formerly payable on lands in the Northern Neck, may probably gain strength from the decision this day to be given, and I mean not to prejudge any thing, I ought, perhaps, to make an apology for having said this much upon the subject. My apology is, that in my view, that rent is absolutely identified with the five shillings rent now in question. I see no essential difference whatever between them. In the discussion of this case, therefore, I cannot entirely keep separated things which in my judgment are intimately blended. If the five shillings quit-rent is now to be recovered, it is of little consequence what name the court may please to annex to it $ whether they denominate it a quit-rent, or a ground rent. If some future claimant of the two shillings quit-rent shall be able to shew to a future court, as the appellee’s counsel have now shewn to me, that there is no essential difference whatever between the two rents, would he not on the authority of the decision now to be given, have a right to demand that that rent be also adjudged to be a ground rent, and that a recovery be, on that ground, awarded in his favour? any sequestrations or confiscations of quit-rents, by the legislature, notwithstanding ? Would he not in fact, sir, be entitled to use this very decision as a precedent ?
Although this court should now decide the five shillings rent to be no quit-rent, it does not decide, and cannot decide, between the now parties, the two shillings rent to be a quit-rent. Any thing which may fall from any of the judges in this cause, to shew the said two shillings rent to be a quit-rent, will hereafter be considered as entirely extra-judicial. It will be perfectly competent therefore, for any future claimant to shew that that rent is no quit-rent, and therefore recoverable, by shewing that there is no essential difference whatever betwen it and the present rent, and to use this decision as a precedent, which will declare the two shillings rent to bo recoverable.
In the whole course of this business, I lay great stress upon the circumstance that the land in question has never been appropriated by lord Fairfax 10 his own use. In the language of the act of 1796, (the act of compromise,) it has never been specifically appropriated and reserved to his own use, either “ by deed or actual surveynay further, it has never been so appropriated and reserved by any other mode adopted by lord Fairfax, (if there are any others admissible upon this record,) to effectuate that purpose. So far from being made the private property of lord Fairfax, it had legally become the private property of the appellee and those under whom he claims; and on payment of the rents (be they quit-rents or not) no power on earth could justly deprive them of the land. This land was not more specifically appropriated by lord Fairfax to himself than any other tract granted out in the Northern Neck, nor were these rents more specifically appropriated to his own use, than the rents of two shillings per 100 acres reserved on lands. Lord Fairfax had an ultimate seignoral right over the whole, but no private right in any. If Mr. Wood, who is stated in the act of 1752 to have granted out the original lots in the town of Winchester, had reserved a perpetual rent thereon, and especially if that rent had borne some
It never has been decided, nor I believe would it be decided by this court that Denny Martin took any beneficial interest in lands under lord Fairfax’s will. It is objected that no inquest of office was ever found in relation to the rent in question : But I apprehend the sequestering and confiscating acts are equivalent thereto. It never could be expected, that there should be as many particular inquests of office as there are tracts of land in the Northern Neck. This general inquest amply supplies their place. I understand the appellant’s counsel, however, to wave this discussion, and to bottom themselves upon the act of compromise. Let us more particularly examine that act, and see whether Denny Martin is authorized by it to convey a title to the rent in question.
That act begins with a resolution, that in case the devisees of lord Fairfax will relinquish all claim to lands in the Northern Neck unappropriated at the time of lord Fairfax’s death, it would be adviseable for the commonwealth “ to relinquish all claim, to any lands specifically appropriated by the said lord Fairfax to his own use either by deed or actual survey.” This resolution was replied to by Mr. Marshall, on behalf of the purchases of the land in the Northern Neck, who states, that he had considered the foregoing resolution, and had “ determined to accede to the proposition it contains,” and declares that deeds shall be executed on their part extinguishing all claim to the waste lands, provided an act passes during that session “ confirming on
Now, can any thing be clearer, than that this act only extends to “ lands specifically appropriated by lord Fairfax to his own use by deed or survey ?” Or at most, under a liberal construction of the compromise, to rents which he had so specifically appropriated; which he claimed as a private owner of the said lands or rents, and not merely as lord proprietor of the territory ? Nothing can be clearer than that that act never meant to extend either to lands held by others in absolute right under the proprietor, or to rents due thereon and reserved by him only in that character, and as a mere acknowledgment of tenure.
In every point of view, therefore, I am clearly of opinion that the judgment of the district court is right, and ought to be affirmed.
In considering this cause, it will be necessary, in the first place, to dispose of the question relative to the nature of the estate of lord Fairfax in the lands lying within the Northern Neck; for, upon the decision of that, most of the other points in dispute will depend : And we think that, independent of his seignoral rights, he was tenant in fee simple, without any act to be done. For the patent, to his ancestor, lord Culpeper, was to him, “ his heirs and assigns forever, and to his and their only use and behoof, and to no other use, intent or purpose whatsoeverWhich is the
The next question that occurs is, Whether the rent in dispute was a quit-rent ?
And we think it was not. For it is in form a rent charge, Co. Litt. 143. Lill. Convey. 269, 270; and has no resemblance to a quit-rent, as a slight attention to circumstances will shew.
Under the feudal system, the lords of large districts of land kept part for their own use, which was called the manor, and was the seat where their authority and jurisdiction were exercised; the rest they distributed among their tenants, to be held of the manor, subject to indefinite services, 2 Black. Com. 90; which, for a sum of money, or certain fixed services, were afterwards, by agreement between them, commuted into a small rent, payable to the lord in his seignoral character, in lieu of all other services. The sum of money, or fixt services, thus agreed for as the price of the exchange, was called a composition ; and the rent a quit-rent, because it quit the tenant of all other services. Spelm. Gloss. 476. 2 Black. Com. 96. Consequently, there could be no quit-rent without a composition and a feudal tenure: And, to prevent disputes, the term itself, or some equivalent expression, was inserted in the deed. Pow. C. R. lib. 4, § 429.
In imitation of this practice, the kings of England, who considered this country as conquered from the Indians, and like Ireland, subject to the feudal law, granted the lands here to be held as of their manor of East Greenwich in England, and took a certain sura for composition, and a rent of one shilling sterling for every fifty acres of waste land granted; which being, necessarily, in lieu of all other services, as the grant required none but that, was uniformly called a quit-rent, and pervaded the Northern Neck, before the date of the proprietor’s title. Old Virginia Laws, 279.
Things being thus situated, lord Fairfax, upon taking possession of the district, followed the course which had been pursued by the crown; took the same composition;
The rent thus exacted by the proprietor was also called a quit-rent; was known, by that name, throughout the Northern Neck; and was constantly so understood by the legislature. For all the acts, passed during the war, are expressly confined to it; and that of 1785 either has no relation to the quit-rents due to lord Fairfax, or it is a law upon the same subject, and should receive the same construction; especially as it couples composition and quit-rents together, and thereby indicates the species to be destroyed.
This view of the subject exempts the rent in question from the operation of the acts of assembly relied upon by the appellee’s counsel.
But it is said that this definition is felo de se; for, according to that idea, there could have been no quit-rent here, as there could have been no manor in Virginia. That, however, was not the theory of the English law; lord Wexford’s case, Davies’s Rep. 15. Penn v. Ford Baltimore, 1 Ves. 449; and the frequent recognition, by the legislature, of the seignoral rights of the proprietor, (among which the patent enumerates the power of creating manors) shews they were understood here according to the notion in England.
Let it be otherwise, however; still that did not prevent a particular class of rents from acquiring a name and other incidental qualities from a supposed analogy to the English practice; and therefore it is unimportant whether there was a manor or not. For if the parties acted under the idea that there was one, and established the rent in conformity to it, it comes to the same thing.
To obviate this, it was said that the rent in question corresponds with the one shilling sterling rent in all its essential features; and therefore may properly be called a quit-rent also. But we do not discover the resemblance. For there is no composition, nor retention of the seignoral rights ex
The analogy, however, is supposed to consist in the duration and size of the rents; both of which, it is said, are fee rents, and trivial, though fully adequate to establish the tenure$ and that the composition may be inferred from the price.
But that whole argument surrenders the points in controversy, as it admits the necessity of a composition and tenure, without establishing the existence of either of them in the present case. For neither the duration, nor the size of the rent, decides the character of it, there being many small rents, throughout the state, which nobody ever thought of calling quit-rents: and neither composition nor tenure can be inferred from any thing expressed in the grant, or set forth in the case agreed : Not the first, for the grant does not contain a syllable to that effect: Not the second; because the ten pounds mentioned there are stated as money received for the lots themselves, and not as composition for the services. This is decisive, as nothing can be added to the written contract, 8 Co. 155 ; especially where the object would be to impress a seignoral dependence, which the representative-of the grantor does not alledge, and the assertion of it would, at the time of the grant, have been odious to the grantee.
Again it was said, that the quit-rents in the manor of Leeds shew that the term was not confined to those of one shilling sterling.
The first answer to this is, that the deed is so imperfectly set forth, that it does not appear whether there was a composition expressed or not j nor what was the quit-rent spoken of: for it could not be the forty shillings; because that is reserved in a subsequent independent clause, and is there called
It is said, however, that the rent in dispute had acquired the name by reputation, as such rents were called quit-rents by some of the collectors of lord Fairfax, and generally by the inhabitants of Winchester.
But there is no proof that the proprietor, or Lemon, ever recognized the term, or that it had grown into use any where else : And, if the contracting parties did not intend, at the date of the grant, that it should be a proprietary or feudal right, it could not become so afterwards. 6 Co. 64. Co. Litt. 202. 4 Co. 31.
After all, if it were admitted, that the rent in question was a quit-rent of some denomination or other, it would not help the appellee. For it seems to be given up that it does not come within the words of the acts of assembly, which are guardedly confined to the one shilling sterling. The admission therefore would not affect the appellant’s title.
To obviate this, it was urged, that the legislature were either unacquainted with the term, or that it was not recollected by them.
But that argument, instead of removing the difficulty, increases it, as it tends to prove that the rent in question was not contemplated at the time; and consequently was not intended to be embraced by the acts of assembly. Besides it is inconceivable how, if it was a known term and feudal in its nature, it could for so many years have escaped the attention of the legislature, the people of Winchester, and
The preliminary words in the act of 1779, “ 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,” were next resorted to, in order to prove that the rent was extinguished.
But the first answer is, that the rent in question was neither servile, feudal, nor precarious; nor more perpetual than any other rent charge. The second is, that the succeeding words of the act of assembly explain the views of the legislature, and ascertain, precisely, the quit-rents which were to be destroyed, limiting them to such as were reserved to the crown.
It is said, however, that lord Fairfax had not, by conveyance, and re-conveyance, acquired the land as private property, but continued to hold it as proprietor, without being owner of the soil; and therefore could not reserve a ground rent out of it.
But we do not perceive the force of the objection. For we have already said, that the original grant from the crown was in fee simple; and it is unquestionably true, that the lord of a manor is owner of the soil held by him, the seignory being only an incident, and not part of the estate. Bro. Man. pl. 2. Bro. Comprise, pl. 30. 15 Vin. 228. Therefore conveyances and re-conveyances whenever made were from abundant caution, or for particular purposes only. For if they were in fee simple, without expressing tenure, they broke the seignory pro tanto. 15 Vin. 228. 1 Leon. 124. 6 Mod. 45. And if the first deed retained the tenure, the seignory was never destroyed ; which shews that, as a general position, such acts were useless, and could only have proceeded from the motives just ascribed to them.
The next enquiry is, as to the operation of the devise to Denny Martin Fairfax ?
The law is clear, that an alien may take by grant. 4 Leon. 84. And there seems to be no distinction between
In Trinity term, 1751, the attorney general filed an information in the exchequer, charging that the devisee was an aliep, and praying the usual relief. The defendants insisted that no office had been found, and that there was no proof of alienage. Upon a motion to stay waste, the court took time to consider, 2 Ves. sen. 286: and while they had it under advisement, the heirs at law of the testator filed a bill in chancery charging also that the devisee was an alien, and praying that a receiver might be appointed, and the deeds inspected. A motion for the receiver was made, on the 20th of July, 1751; and although the attorney general did not oppose the principle of the motion, he suggested that it might possibly' interfere with the cause in the exchequer. Upon which lord Hardwicke observed, that he did “ not remember any distinction between a grant, conveyance or devise to an alien;” but refused the receiver, without deciding
That case therefore proves, that Denny Martin Fairfax took by devise; and the authorities, before referred to, shew, that the seizin was transferred to him by operation of law.
The question then is, Whether the seizin was ever disturbed before the date of the deed to the appellant? And, we think, it was not; because no office had ever been found to divest it. 8 Co. 169. 2 Inst. 206, 207. 3 T. Rep. 734. For the act of 1779, did not produce that effect; because that statute vested the property in the commonwealth, not by way of confiscation, but of escheat; and, in terms, required an office; which was to lie in the general court a month before the title should be barred, or any sale of the lands should, be made. Ch. Rev. 99. These proceedings,
This brings us to enquire, whether the deed of Denny Martin Fairfax conveyed the rent in dispute to the appellant? We have already said, that it conveyed the land ; and that it transferred all the rents, except quit-rents, is equally clear. 1 H. Black. 30. 1 W. Black. Rep. 22. Consequently, as the rent demanded was not, according to our view of it, a quit-rent, it is not comprized within the exception, but passed by the deed.
The only question, respecting the right to property, which could remain to be discussed, would be, Whether the commonwealth retained the rights conferred by the act of 1779, and can now proceed to an inquest of office; or whether they were not extinguished by the treaties between Great Britain and the United States, and our act of assembly in 1783 ?
Upon these points, the case of Read v. Read, in this court, [ante. 160,) was referred to as affording a rule for the decision of this cause. But, without meaning to decide the main question upon the treaty, we think there is no analogy between the two cases; because that was a descent claimed by an alien from an ancestor who died after the war; and this the case of an estate taken, during the war, by a devise which was capable of transferring it, whether the alien was able to hold, or not.
It is unnecessary, however, to pursue the enquiry; because the act of compromise in 1796, made during the pendency of a suit in this court, where all the points arose, has put an end to the controversy. For it makes Denny Martin Fairfax capable; and relinquishes to the appellant all claim, on the part of the commonwealth, to lands which had been appropriated by lord Fairfax: and it is impossible to
The consequence is, that, as the case finds that the rent was arrear and actually demanded, the appellant, having the right of the commonwealth as well as that of Fairfax, may sustain his action to recover the land as incident to the rent. 14 Vin. 44. Cro. Jac. 510. 2 Call, 249. For the passage cited from Litt. sect. 347, to prove that, although the .■grantor may distrain, he cannot re-enter, is no longer law; ¡because the statute of 32 Hen. 8, cap. 34, and our act of assembly, have altered the common law in that respect. For they give the same right of entry to the assignee, that the grantor had: and it makes no difference that the words of both extend to leases for years and estates for life only, as the reason is the same with regard to fee rents, which are within the equity of the laws; for “ ubi lex est specialis, et ratio ejus generalis, generaliter excipienda est.” 2 Inst. 43. Cro. Jac. 511. 2 Roll. Ab. 47.
The law with regard to pretensed titles, has nothing to do with the case; because that, even as to lands, relates only to those the title to which is actually disputed by the tenant at the time of the grant; but here, no dispute, either as to the rent, or the land, had arisen. Besides, the case finds that Denny Martin Fairfax was lawfully seized, which, of itself, removes the objection.
The judgment of the district court is therefore to be reversed ; and judgment entered for the appellant.