# Watson v. Mercer

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United States Supreme Court
33 U.S. 88
Watson v. Mercer
ERROR to the supreme court of the state of Pennsylvania.
In 1826, the defendants in error, John Mercer and Margaret Mercer, instituted an action of ejectment in the district court of the city and county of Lancaster, against Jane Watson and others, the plaintiffs in error, for the recovery of a tract of land in Lancaster county, and a verdict and judgment, under the charge of the court in favour of the plaintiffs, were rendered in their favour.
The plaintiffs prosecuted a writ of error to the supreme court of Pennsylvania, and in 1832 that court affirmed the judgment of the district court.
The land in controversy was part of a tract held under a patent granted by the proprietaries of Pennsylvania to Samuel Patterson on the 19th October 1743; and by regular descent became vested in Margaret Patterson, the daughter of the patentee, who afterwards intermarried with James Mercer; who had five children by a former wife, now represented by the defendants in error.
For the purpose of vesting the land in controversy in her husband in fee simple, Margaret Mercer on the 30th May 1785, together with her husband, James Mercer, executed a conveyance thereof to a certain Nathan Thompson, who on the same day reconveyed the said land to James Mercer in fee. This deed was not acknowledged by Margaret Mercer according to the forms prescribed by the act of assembly of Pennsylvania of 1770, enacted for the purpose of making the conveyances of real estate by femes covert valid.
After the death of Margaret Mercer in 1805, David Watson, in right of his wife, the heir at law of Margaret Mercer, to whom, if the conveyance of 30th May 1785 was invalid, the land in controversy had descended; instituted an ejectment for the same, alleging that the acknowledgment of the deed being defective, the same was absolutely void. In this suit Watson and wife recovered the premises, and went into possession thereof. Afterwards John and Margaret Mercer instituted an ejectment against Watson, then in possession of the premises, and in 1823 that suit was decided in the supreme court of Pennsylvania in favour of the defendants in the ejectment; thus affirming the decision in the first case.
On the 3d day of April 1826 the legislature of Pennsylvania made the following law.
'A supplement to an act entitled 'an act for the better confirmation of the estates of persons holding or claiming under feme coverts, and for establishing a mode in which husband and wife may hereafter convey their estates.'
'Whereas, by the act of assembly, to which this is a supplement, it is enacted that the estates of feme coverts may be transferred by deed executed by the husband and wife, and by them acknowledged before certain officers: And whereas, under this act, estates of great value have been bona fide sold by husband and wife for a legal and sufficient consideration, and the deeds therefor have been by them acknowledged before the proper officer; but, in many cases, the mode of making such acknowledgement hath been imperfectly set forth in the certificate: And it hath been held by the supreme court, that deeds transferring the rights and interests of feme coverts are invalid and void, unless certain requisites of the acknowledgement of such deeds provided by the said act, shall appear upon the face of the certificate of such acknowledgement to have been pursued, and in all such cases it is but just and reasonable that persons who hold such estates, should not, in any case, be disturbed in the enjoyment of them thus equitably acquired, nor divested thereof under any pretence whatsoever: Now, for the purpose of carrying into effect the real intent of the parties, and of quieting and securing the estates so transferred,
'Section 1. Be it enacted, by the senate and house of representatives, of the commonwealth of Pennsylvania, in general assembly met, and it is hereby enacted, by the authority of the same, That no grant, bargain, sale, feoffment, deed of conveyance, lease, release, or other assurance of any lands, tenements and hereditaments whatsoever, heretofore bona fide made and executed by husband and wife, and acknowledged by them before some judge, justice of the peace, or other officer authorized by law within this state, or an officer in one of the United States, to take such acknowledgement, or which may be so made, executed and acknowledged as aforesaid, before the 1st day of September next, shall be deemed, held, or adjudged invalid, or defective, or insufficient in law, or avoided or prejudiced by reason of any informality or omission in setting forth the particulars of the acknowledgement made before such officer as aforesaid, in the certificate thereof, but all and every such grant, bargain and sale, feoffment, deed of conveyance, lease, release, or other assurance so made, executed, and acknowledged as aforesaid, shall be as good, valid, and effectual in law, for transferring, passing, and conveying the estate, right, title and interest of such husband and wife, of, in, and to the lands, tenements, and hereditaments mentioned in the same, as if all the requisites and particulars of such acknowledgement mentioned in the act to which this is supplementary, were particularly set forth in the certificate thereof, or appeared upon the face of the same.'
In 1829, the defendants in error, John and Margaret Mercer, instituted another ejectment for the land, claiming, that the deed of 30th of May 1785 had been made valid by the act of assembly of 1826, and a verdict for the plaintiff was rendered in the district court of the city and county of Lancaster, the judgment of which court upon the verdict was affirmed in the supreme court of Pennsylvania. From that judgment of the supreme court, the case came before this court by writ of error.
The case was presented to the court on printed arguments, by Mr Hopkins and Mr Montgomery for the plaintiffs in error, and by Mr Rogers for the defendants. As the court decided no other points but those in which the constitutionality of the act of 1826 was presented, the arguments upon the other questions raised in the case are omitted.
The counsel for the plaintiffs in error contended,
1. That, under the laws and constitution of Pennsylvania, and the constitution of the United States, the title and possession of the plaintiffs in error to the land in dispute was sacred, and could be disturbed or violated by no judicial proceedings known to the said laws and constitutions; and, a fortiori, by no legislative enactment.
2. That the act of 3d April 1826, as applied to this case, is unconstitutional and void; divesting the vested rights of the plaintiffs in error to the property in dispute, and impairing the obligation of the contracts under which they recovered and held the same; transcending the power of the legislative branch of government; and subverting all the protection guarantied to property and contracts by the constitution of the United States, as well as of the state of Pennsylvania.
For the plaintiffs in error, it was argued by Mr Montgomery, that the legislature of Pennsylvania could not, by the act of April 3d 1806, divest the property of the Watsons and vest it in the Mercers. For if this act be construed to be applied to this case, and be considered as a constitutional exercise of legislative power, this will be the inevitable result.
The grant of the proprietaries to Samuel Patterson on the 19th October 1753, was recognised by the legislature on the 27th November 1779, and the act of that date, 1 Smith 479-481, confirming the title of the grantees, amounted to a new grant and a contract, that Samuel Patterson should hold the land thus acquired to him, his heirs and assigns; and the obligation of this contract was, as he had fully paid for the estate, that he should hold it according to the laws of the land, and not be divested of it, except by due course of law. The legislature would have had no right to resume it, or grant it to another. Terret v. Taylor, 9 Cranch 43,292; Pawlet v. Clark, 4 Wheaton 683; Fletcher v. Peck, 6 Cranch 87; New Jersey v. Taylor, 7 Cranch 164. And surely, what they cannot do directly, they will not be permitted to accomplish by indirect means. Sarah Watson recovered, in the suits of 1805, by virtue of the obligation of this contract, as contained in the grant. The land was withheld from her; she applied for redress to the judicial power, whose duty it was to expound, administer and enforce the law, Ogden v. Blackledge, 2 Cranch 272; and she recovered her estate. Why? Because she had a vested right to it. A vested right is defined to be 'the power to do certain actions, or possess certain things according to the laws of the land.' 1 Adams (New Hampshire) 203; 12 S. and R. 360. Immediately upon the death of her sister, the right descended to her, and it became eo instante, vested in her. Whence was it derived? From the patent, and from its confirmation by the act of the legislature in 1779. This was a contract executed; and it is respectfully urged, that in Pennsylvania, there can be no vested right to land, that is not derived from contract. The whole system of land titles in Pennsylvania rests on this basis, and there is no trace of any title in that state, which did not originate in a grant, 12 S. and R. 371-3,380; or was perfected by patent, after having incepted by improvement.
And no vested right can be taken away or interfered with, except by impairing the obligation of the contract on which it is based, and whence it springs.
Can it be doubted that this was a vested right? Why the very terms of the definition embrace it, even to the letter. In the action of ejectment, the plaintiff must show a right of entry. Sarah Watson proved she had 'the power to do this thing.' But the plaintiff must prove that he has a right to the possession. Sarah Watson proved that she had a right 'to possess this land according to the laws of the land.' Can any case come more completely within the very letter of the definition. The act of 3d April 1826 surely cannot be retrospectively construed, so as to embrace this case; for such a construction would make the law odious and void; 2 Dall. 310; 3 Dall. 388; 7 John. 477; 1 Kent's Comm. 455; 12 S. and R. 360; 4 S. and R. 401; 13 S. and R. 256; 15 S. and R. 72; 2 Show. 17, 2; 1 Vent. 330; 4 Burr. 2460; 1 Wash. 132; 3 Call 218; 2 Cranch 272; 1 Hen. and Mun. 205; 1 Binney 607; 2 Gall. 150; 3 Keble 543; 2 Inst. 292, 474; 2 Ch. R. 302; Price's Ch. 77; 2 Ath. 87; 4 Wheaton 207; 12 Wheaton 267; 271, 295, 301, 327; 8 Wheaton 12; 8 Mass. 423, 430.
But is it applicable to it at all? The deed of 30th May 1785, had been judicially declared to be a void thing, utterly inoperative; and, consequently, incapable of any confirmation. Coke Litt. 295, b; Gilbert's Ten. 75; 8 Cowen 544, 588; 16 John. 110; 20 John. 301; Newland on Con. 31; 3 Burrows 1805; 2 P. Williams 144. It would never have been enforced against Margaret Mercer, in equity; 5 Day 492; 7 Conn. 224. The Mercers had failed in their ejectments, not from want of proof of the due execution of the deed of 30th May 1785, as it seems to be supposed by the chief justice, but because that deed was utterly and absolutely void; and this will be found to have been the express decision in every case in which the point was mooted. The act of 24th February 1770 imposed a high judicial duty on the examining magistrate; and, where it was not performed by him according to the directions of the statute, the contract was held utterly void; not because the 'grantee had failed in proof of its execution,' but because the grantor, the feme covert, was utterly incapable of making any contract or doing any act, except in the mode directed by the statute. 1 Binney 470; 2 Inst. 515; 2 Kent's Com. 168.
How can the act of 3d of April 1826, operate upon it at all? If by way of confirmation, then it forms a new rule for a past case, and transcends the legislative power. 2 Cranch 272. Nay, it does more; for Margaret Mercer, if living, could by no act re-create this deed, so as to give it validity from its date. 16 John. 110; 20 John. 301; 4 Binney 1. It is called, an explanatory act; but if it be true that it introduces a new rule of construction, then it is, quoad hoc, a repeal of the law of 1770; for it is an undeniable principle that, where a subsequent statute makes a different provision on the same subject, it is not an explanatory act, but an implied repeal of the former, 7 John. 496, 497; and if it be a repeal of the act of 1770, it can have no effect in divesting rights acquired under the former act. 8 Wheaton 493. So that, quacunque via data, this case ought not to be held to be embraced by it. It is, therefore, respectfully submitted, that these cases are not embraced by the act of 3d of April 1826; and that, by applying and making it the ground of their judgment, the supreme court of Pennsylvania have given it a construction which makes it void, so far as regards them; for it is in direct opposition to the first article of the tenth section of the constitution of the United States, which prohibits any state from passing an 'ex post facto law, or law impairing the obligation of contracts.'
A law may be constitutional in its application to some cases, and void as to others. 3 W. C. C. R. 318, 319; 12 Wheaton 261, 262, 299, 302, 304, 327; and all the judges of this court, it is believed, have so held. Indeed, it seems to have been conceded by all, in the great case of Ogden v. Saunders, that retrospective legislation, operating upon past contracts, so as to impair their obligation, would be unconstitutional and void. It was so held in Sturges v. Crowninshield, 4 Wheaton 122; M'Millan v. M'Neill, 4 Wheaton 209; Smith v. Mechanics' Bank, 6 Wheaton 131; Dartmouth College case, 4 Wheaton 613. Now, the act of 3d April 1826 can embrace this case only by a retrospective operation; and the question then arises, does it not impair the obligation of a contract, within the meaning of the constitution of the United States? The extent of the change made in the contract, or the evidence of it, does not vary the principle. 8 Wheaton 84, 75, 76; 12 Wheaton 327. A change in the evidence, if it go to defeat a right already vested under the contract, would equally impair its obligation. it surely could not be contended that a will of lands, not executed according to the statute, could, by a repeal of it, or a change so as to make it conformable to the very case supposed, be made valid and operative, so as to defeat the estate of the heir, acquired and vested by descent. Similar illustrations of the principle are given by all the learned judges who delivered opinions in the case of Ogden v. Saunders; and a most apt one upon the statute of limitations, by the chief justice, in Sturges v. Crowninshield.
It has been attempted, and, with great confidence it is submitted, with success, to prove that Sarah Watson could never have recovered this land but by force of a vested right acquired by contract; and that in the same way her grandchildren successfully resisted the claim of the defendants, and obtained a final judgment against them, on 3d of June 1820. It this act be construed to apply to this case, the inevitable consequence is, that it divests this right thus vested under the contracts, impairs, nay destroys, its obligation, and takes the property from them to give it to the Mercers, whom the supreme court twice decided had no title or even the shadow of claim. But it is said the effect of this act is to affirm, and not destroy a contract, and that this circumstance brings the case fully within the principle of Satterlee v. Matthewson, decided by this court. 2 Peters 380. Now, according to the distinction taken in Ogden v. Saunders, between a contract and its obligation, it is manifest that the contract between Satterlee and Matthewson was valid as between themselves, although the municipal law gave it no obligation. Each party was competent to make a contract, for each was sui juris; and the contract in that case was between the very parties to the suit. In this case, Margaret Mercer was wholly incompetent to make any contract. She was not sui juris, but wholly sub potestate viri; and every thing she did was merely void. 1 Black. Com. 444; Litt. sec. 669, 670. She would not, and could not, have been affected by this deed after her coverture ceased. 5 Day 492.
But again: this is an attempt to set up a contract, not between the parties to this suit, but between strangers. What connexion is there, or ever was there, between Sarah Watson and Nathan Thompson, from whom James Mercer derived title immediately; or between her and James Mercer, who conveyed to Thompson? They are strangers in blood and estate. So that there is, it is believed, no analogy between the cases whatever. But there is another all-powerful distinction between that case and this, which must wholly refute the argument drawn from this source. No final judgment ever was rendered in that case; a venire do novo was awarded after the reversal of the judgment; and it would have been perfectly competent to the court to have corrected the error of the first decision: and so the act of assembly was not essential to the validity of the claim of Mrs Matthewson. But here, if the Mercers recovered at all, it is by mere force of the act of 3d April 1826.
It is a perversion of terms to say that Satterlee acquired a vested right by the decision made in 1825; for no final judgment was rendered in the case at all. But how different the cause now under consideration. Here the heir recovered by virtue of her vested right under the contract, and was put in possession of the land; the mesne profits were adjudged her as a compensation for her loss, and she was remitted to her original estate, so as to make her title, by operation of law and lapse of time, valid against the whole world. Her grandchildren had defeated the very persons now suing, and, by obtaining the judgment on 3d of June 1820, acquired an additional protection from the statutory provisions of the act of the 13th April 1807.
But further: the effect of the judgment in Satterlee's case was not to impair the patent to Wharton under which he claimed: it was left in full force, so as to afford him every remedy to which, atlaw, he was entitled. All that the decision of the act of assembly did, was to prevent a particular defence that affected merely the right of possession to the land in that action, without touching the titles of the respective parties at all. How different is this case. Here are no conflicting patents: if these judgments be affirmed, the consequence inevitably is, that the estate goes from the blood of Samuel Patterson and passes to strangers. What boots it if the patent be available against the state, if they have the power to take the land from the heirs of the original grantee, who paid for it, and give it to strangers? Of what avail is it that courts may recognize, and protect and enforce contracts, and the rights that spring from them, if the legislature may, at pleasure, thus impair them? The act in question may be a perfectly proper and legitimate exertion of legislative power, if construed so as to protect the rights intended to be secured by it. But if the construction put upon it by the supreme court of Pennsylvania be sustained, then it is an act of legislative power far transcending even the boasted omnipotence of the British parliament. It breaks down all the security of property derived from contract, and resolves every man's title into a tenure at legislative will; it overturns solemn decisions of the courts of the last resort, by which even these courts themselves were so bound that they could not fail to obey them; and it leaves every thing relating to personal rights or private property, not under the protection of the constitution, where the people placed it, to be expounded by the judiciary, but in the variable and ever changing mind of the popular branch of the government.
The repeal of laws, the abrogation of treaties, even the disruption of empires, have hitherto been held not to affect private rights previously acquired and vested; but if the doctrine advanced in Mercer v. Watson be sustained, all these solemnly settled principles are overturned, and a simple legislative enactment is enabled to do that which the most violent revolutions have hitherto been unable to effect; and rights heretofore considered as sacred as justice herself, are all consigned to popular will and popular excitements.

## Notes

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