# Browning v. Carroll

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United States Supreme Court
24 U.S. 134
Browning v. Carroll
ERROR to the Circuit Court of Maryland.
This was an action of debt, brought by the plaintiff in error in the Court below, for the recovery of certain quit-rents alleged to be due from the defendant to the plaintiff's intestate. The special verdict found by the jury stated the following facts.
The jury find, by their verdict, that Charles the First, in the eighth year of his reign, granted to Caecelius Calvert, Baron of Baltimore, his heirs and assigns, for ever, in fee simple, the Province (now State) of Maryland, by a charter dated the eighth of June, 1633. Caecelius Calvert died in 1675, and left Charles, afterwards Baron of Baltimore, his son and heir, who entered into the said Province, and was seised thereof. The said Charles, in 1711, granted, according to the laws of the Province, to Charles Carroll, Esq. father of the defendant, a patent for a tract of land containing ten thousand acres, 'to have and to hold the same unto him, the said Charles Carroll, his heirs and assigns, for ever; to be holden of us and our heirs, as of our manor of Baltimore, in free and common soccage by fealty only for all manner of services, yielding and paying therefor, yearly, unto us and our heirs, at our receipt at the city of St. Mary's, at the two most usual feasts in the year, viz. at the feast of the annunciation of the blessed Virgin Mary, and St. Michael the arch-angel, from and after the second day of April, which shall be in the year of our Lord 1723, the rent of one hundred pounds sterling in silver and gold.'
The defendant inherited the said tract of land from his father, and is now seised and possessed of the same. On the 31st day of December, 1698, the said Charles Lord Baltimore executed a deed, by which he settled the Province of Maryland on himself, remainder on his son Benedict for life-remainder on the heirs male of the body of the said Benedict-remainder to the said Charles in fee. There were trusts created in the said deed, all of which are determined. The said Benedict died in 1714, and Charles, his father, in 1715. The said Benedict left issue male Charles his heir, afterwards Lord Baltimore, and proprietor of Maryland. Benedict left other sons, all of whom died without issue.
The last mentioned Charles entered into the Province of Maryland, and was seised thereof, as the law requires; and, on the 11th day of July, 1730, executed a deed to trustees, to the use of the said Charles and his assigns for life, remainder to the use of the first and other sons of the said Charles in tail male successively-remainder to the use of the said Charles in fee. There were other trusts created in the deed, but they were all determined at the death of Mary, the wife of the said Charles, which took place in 1769.
In 1692, an act was passed by the legislature of Maryland, which declares, that no manor, land, tenements, or hereditaments whatsoever, within the Province, shall pass from one to another, except the deed or conveyance be acknowledged before certain magistrates, and enrolled or recorded. This act was in force when the indenture of the 31st of December, 1698, was executed, but the said indenture was not acknowledged or recorded. The legislature of Maryland, in 1715, ch. 47. passed an act which requires deeds, and leases for more than seven years, to be acknowledged and recorded within six months from their date. It also declares all deeds, not acknowledged and recorded, according to the provisions of the act of 1692, to be void. The deed of the 11th of July, 1730, was neither acknowledged nor recorded.
The last mentioned Charles Lord Baltimore had issue only one son named Frederick, and two daughters, one named Louisa, (who is the plaintiff's intestate,) and the other named Caroline. The said Charles Lord Baltimore, being seised of the Province of Maryland as aforesaid, made his will in 1750, and devised the Province of Maryland to trustees, for the use of his son Frederick, and his assigns, for life; remainder to the use of the sons lawfully begotten of the body of the said Frederick, successively in tail male; remainder to the daughters of the said Frederick; 'and, in default of such issue, then to the use and behoof of Louisa, my eldest daughter, her heirs and assigns, for ever.' Charles Lord Baltimore died seised the 23d day of April, 1751. The said Frederick Lord Baltimore died without lawful issue, on the 4th day of September, 1771.
Louisa, the plaintiff's intestate, was married to John Browning, on the 15th day of May, 1762, and remained covert baron of the said John until 1792, when he died. The said Louisa was a lunatic from the year 1780 till the day of her death, which took place in November, 1821. She has never been in the State of Maryland since the death of her father. Letters of administration were regularly granted to the plaintiff on the 17th day of April, 1823.
Frederick, the son of Charles Lord Baltimore, entered into the Province of Maryland, and was seised thereof as the law requires. On the 1st day of July, 1761, the said Frederick, and Caecelius Calvert, his uncle, executed a deed of bargain and sale, to Thomas Bennett and William Sharp, of the Province of Maryland, and its appurtenances, for the purpose of docking the intail of the Province. On the 8th of April, 1767, the said Frederick executed a deed of lease and release of Ann Arundel manor, and all other manors held by the lord proprietary in the Province, to Bennett Allen, and recoveries were afterwards suffered of the said manors, in pursuance of the said deed of lease and release. On the 4th day of March, 1771, Frederick Lord Baltimore made his will, and devised the Province of Maryland, and all its appurtenances, to Henry Harford.
That upon the death of the said last mentioned Frederick, Baron of Baltimore, Henry Harford, the devisee named in his will, was a minor, and a ward, under the guardianship of the Court of Chancery in England, and so continued until 1779. That the said Henry Harford, as devisee as aforesaid, was recognised and acknowledged by the provincial government of Maryland, as the lawful proprietor under the charter, and by his guardians, with the knowledge and consent of the British government, entered into the possession of the government of the Province of Maryland, and received the rents and revenues thereof as proprietor, until the beginning of the disturbances which separated the United States of America from the British government. That those disturbances began in 1774, at which time the people of the Province of Maryland took the government of the said Province into their own hands, and ousted the officers of the proprietor; and the government of the said Province so continued in the hands of the people until the dedeclaration of independence, the 4th of July, 1776. That no quit-rents, nor any revenues which fell due in the said Province after the year 1773, were paid to the proprietor or his officers; that, after the revolutionary war, the British government paid to the said Henry Harford 60,000 pounds, as a compensation for his losses in Maryland by the revolution; and paid to the abovementioned John Browning, and to Robert Eden, who married the abovementioned Caroline, 10,000 pounds each, as a compensation for their losses in the said Province, by the said revolution. That suits in the Chancery Court of England were instituted in 1772, by the said Browning and wife, and the said Eden and wife, against the said Harford, to recover the Province and revenues of the said Province of Maryland, which suits continued until 1782, when the said bills were dismissed by the complainants.
In 1780, the legislature of Maryland passed an act, which declares, that 'the citizens of Maryland, from the declaration of independence, and for ever, be, and they are hereby declared to be, exonerated and discharged from the payment of the aforesaid quit-rents, and that the same shall be for ever abolished and discontinued.'
In 1780, an agreement was entered into in England, by deed, between Henry Harford of the first part, John Browning, the husband of Louisa Browning, and Sir Robert Eden and Caroline his wife, (the said Louisa and Caroline being the heirs at law of Frederick Lord Baltimore,) of the second part, Sir Cecil Wray, the committee of the real and personal estate of the said Louisa, (she being a lunatic,) of the third part, and Hugh Hammersley and Peter Prevost, two of the executors named in the will of Frederick Lord Baltimore, of the fourth part, all the said parties being British subjects. The agreement makes an absolute cession of the Province, and revenues, &c. from the time of the decease of Lord Frederick, to Henry Harford and his heirs, upon the payment (among other things) of 10,000 pounds to John Browning and Louisa his wife, and 10,000 pounds to Sir Robert Eden and Caroline his wife, in the manner stipulated in the agreement. It also provided in the event of the restoration of Henry Harford to the possession of the Province and its revenues, growing, or in arrear, for an additional sum of 10,000 pounds, for the benefit of each of said ladies, payable out of the same. The agreement further stipulated for an application to the British Parliament for an act to confirm the same, and to vest in Henry Harford and his heirs, the title to the Province, and its revenues, with a provision that the agreement should be void unless the royal assent should be given to the act within three years. The act, accordingly, passed, and was assented to by the king within the period prescribed. It vests the title to the Province, and its revenues, and quit-rents, &c. absolutely in Henry Harford and his heirs, subject only to the payment of the sums before mentioned, and some others not material to be stated.
Upon this special verdict, a judgment was entered in the Court below pro forma, by consent, for the defendant, and the cause was brought, by writ of error, to this Court. March 13th and 14th.
The cause was argued by Mr. Webster and Mr. Raymond, for the plaintiff, and by the Attorney General and Mr. Taney, for the defendant.
It has not been thought proper to report the arguments of counsel, at large, involving a great variety of feudal and constitutional learning, which the Court did not think it necessary to examine, as the cause was determined upon the single point of the effect of the agreement made in 1780, and confirmed by act of Parliament in 1781.
On the part of the plaintiff, it was contended,
1. That the deeds of 1698, and 1730, were void under the acts of Assembly of 1692, and 1715, referred to in the special verdict; and that, consequently, Charles Lord Baltimore, the testator of the plaintiff's intestate, was tenant in fee simple of the Province of Maryland, at the time of his death in 1751.
2. If those deeds were not void, then the said testator was tenant in tail under the deeds, with reversion in fee, which reversion was a devisable interest, and was well devised to the plaintiff's intestate.
3. Payment of rent to Henry Harford, or his agents, did not discharge the defendant from his liability to pay the plaintiff.
4. The act of the legislature of Maryland of 1780, which professes to abolish the quit-rents from and after the declaration of independence, is void, on the general principle of the law of nations, that a division of an empire does not affect vested rights of property, and by the special provisions of the treaty of peace of 1783, and the treaty of 1794, between the United States and Great Britain. The original charter to the first Lord Baltimore, distinguished between his public and his private character, and meant to confer upon him beneficial rights of property independent of his political character as the ruler of the Province. At all events, the act of 1780 could not affect, retrospectively, the quit-rents which were then actually due, and had accrued from the death of Frederick Lord Baltimore in 1771, until May, 1780, when the act was passed.
5. That the agreement of 1780, alleged to have been confirmed by act of Parliament in 1781, is no bar to the plaintiff's right of action.
Upon this last point, (which was the only one determined by the Court,) it was argued for the plaintiff, that the agreement contemplated a restoration of Henry Harford to the possession of the Province, and the payment of large sums of money consequent on that event, and that this being an essential part of the contract, which became incapable of execution by the result of the war, the agreement could not legally be enforced. It was also contended, that it was not competent for John Browning, the husband, as such, to convey the title to these quit-rents belonging to Louisa Browning his wife, so as to bar her, in case of survivorship, from the right of recovery, and that, she being a lunatic, no act done by her committee could in any manner affect her rights. A mere intention to reduce into possession the wife's choses in action, has been held insufficient to bar the widow of her right to them. So, a general assignment in bankruptcy has not the effect of reducing into possession, a legacy of stock in trust for the bankrupt's wife, whose right by survivorship will be established against the assignees. And a transfer of stock into the wife's name, to which she became entitled as a distributive share of personal estate during the marriage, will not be considered as a payment or transfer to her husband, so as to defeat her right by survivorship. Supposing, therefore, the husband had agreed to transfer this specific claim, it would only operate as an equitable assignment; the assignee must sue in the name of the husband; and if he did not recover during the lifetime of the husband, the right would survive to the wife. But, in no point of view, could it be considered as a legal defence, or be pleaded in bar of this action.
On the part of the defendants, it was insisted,
1. That as soon as Maryland became a sovereign and independent State, the quit-rents which fell due after the declaration of independence, were due to the State, and not to the representative of Lord Baltimore. They belonged to him in his public political character as lord proprietary, and not in his individual private capacity.
2. That Henry Harford, being acknowledged by the Province of Maryland, and by the King of Great Britain, as the proprietor of Maryland, was, by such acknowledgment, the lawful proprietor, and entitled to the quit-rents until Maryland became an independent State.
3. If the Province was private property, and entailable and devisable, then the entail was barred by Frederick Lord Baltimore, and the devise to Henry Harford was good.
4. If Henry Harford was not lawful proprietor, he was proprietor de facto, and, as such, payment to him would discharge the tenants.
5. That the treaties with Great Britain have no application to rents falling due subsequent to the declaration of independence. At all events, the act of Assembly of 1780, effectually confiscated the quit-rents due before that time, and so devested the title of whoever might be entitled to them, as to extinguish all claim to those quit-rents.
6. That the agreement of 1780, confirmed by act of Parliament in 1781, bars the plaintiff's right of action.
Upon this last point, it was argued for the defendant, that John Browning, the husband, had a right to bind all the rights of Louisa Browning the wife, with respect to such debts as were then actually due and payable, and, therefore, had a right to transfer, for a valuable consideration, the quit-rents, actually and presently due. The cases cited on the other side did not shake this principle. The case of Blount v. Bestland, was not the case of a sale for a valuable consideration, but of a bequest by a husband to his own children, of a legacy due to the wife, which he had not reduced to possession. Mitford v. Mitford, was the case of a general assignment of all his effects by a bankrupt husband, and the Court determined that it did not pass a legacy which he had not reduced into possession. But the argument manifestly admitted, that a particular assignment of the specific legacy for a valuable consideration would have produced the effect. The case of Hornsby v. Lee, was the sale of a wife's reversionary, not a present interest. So, that the power of the husband over the wife's present debts, immediately recoverable, remained untouched by these decisions. But, in the present case, the wife was a ward of Chancery, and was represented by her committee in the transaction, which was advantageous for her, the benefit of which she had received, and now actually enjoys. The compromise was confirmed by an act of Parliament obtained on an application of the parties, and ought, therefore, to be considered as annihilating all her claims to the subject in controversy.
Mr. Justice STORY delivered the opinion of the Court.

## Notes

* ↑ Calvert's lessee v. Eden, 2 Harr. & M'Henry's Rep. 279. 337. Opinion of Sir F. Hargrave, S.C.. Ib. 341.
* ↑ Vattel, Droit des Gens. liv. 4. c. 2. § 22. Ware v. Hylton, 3 Dall Rep. 199. 239. Georgia v. Brailsford, 3 Dall. Rep. 1. Terett v. Taylor, 9 Cranch's Rep. 43. 46. Orr v. Hodgson, 4 Wheat. Rep. 453. Society, &c. v. New Haven, 8 Wheat. Rep. 464.
* ↑ Roper. Husb. and Wife, 204. 223. 227.
* ↑ Blunt v. Bestland, 5 Ves. Rep. 515. Lumb v. Milnes, Id. 517.
* ↑ Mitford v. Mitford, 9 Ves. Rep. 87.
* ↑ Wildman v. Wildman, 9 Ves. Rep. 174. See also, Nash v. Nash, 2 Madd. Rep. 133. Hornby v. Lee, 2 Madd. Rep. 16. proprietary, and not in his individual private capacity.
* ↑ 2 Bl. Comm. 53, 288; Co. Litt. 244, note b; Pownall, Colonies, 48-9; Kirk v. Smith, 9 Wheat, 241, 266, 282.
* ↑ 1 Bl. Comm. 106, 107. Derby v. Athol, 2 Ves. sen. Rep. 337. Penn v. Baltimore, 1 Ves. sen. 455.
* ↑ Smith v. Maryland, 6 Cranch's Rep. 306.
* ↑ 5 Ves. Rep. 515.
* ↑ 9 Ves. Rep. 87.
* ↑ 2 Madd. Rep. 16.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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