# Doe v. Governeur's Heirs Robertson

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United States Supreme Court
24 U.S. 332
Doe v. Governeur's Heirs Robertson
Certificate of Division from the Circuit Court of Kentucky.
THIS was an action of ejectment brought in the Circuit Court of Kentucky, in which the lessors of the plaintiff gave in evidence a patent from the Commonwealth of Virginia, for the lands in controversy, lying in Kentucky, to Robertus S. Brantz, then an alien, bearing date the 11th of October, 1784, founded on a land-office treasury warrant. They also gave in evidence a certificate of naturalization of the said Brantz, in the State of Maryland, on the 8th of November, 1784, and an act of the legislature of Kentucky, passed in 1796, entitled, 'An act for the relief of Robertus Samuel Brantz,' which recited that he was an alien when the patent issued; confirmed his estate as fully as if he had been a citizen at the time of the grant, with a proviso, that nothing in the act should affect the right or title of any other person or persons, but only 'the right which this Commonwealth may have in the said lands.' The said Robertus S. Brantz died in 1797, leaving a son, Johannes Brantz, an alien, incapable of inheriting the lands. An act of the legislature of Kentucky, passed December 9th, 1799, reciting that Robertus S. Brandtz had departed this life indebted to Isaac and Nicholas Governeur; that Johannes Brantz, his son and executor, and an alien, made a power of attorney to the said N. G. to sell the lands of the said R. S. B., for the payment of the debt, which sale had been made; therefore, 'all the right which the said R. S. B. had, before, and at his death,' and the right of the said Johannes B. was declared to be vested in the said I. and N. Governeur, 'as fully as if the said Robertus S. B. had done in his lifetime, or as if the said Johannes B. had been a naturalized citizen when he executed the power of attorney for the sale and conveyance of the said lands.'
The defendants claimed title under a grant of the Commonwealth of Virginia, dated the 2d of December, 1785, to one Duncan Rose, and proved a regular derivation of title from him.
The plaintiffs thereupon moved the Court to instruct the jury, that if they found that the grants to R. S. Brantz covered the lands in controversy, that the lessors of the plaintiff duly derive title under N. and I. Governeur, and that R. S. Brantz neither conveyed nor devised those lands, and left no heirs capable of inheriting them, and that the defendants were in possession at the commencement of this suit, that the verdict should be for the plaintiff.
The defendants moved the following instructions:
1. That if the jury find, from the evidence, that Robertus S. Brantz was an alien at the time when the patent given in evidence was procured by him, that nothing passed to him by said grant, but that it was void.
2. That if Robertus S. Brantz died, leaving his son as alien, and having no relations who were citizens of the United States, or of any of the States, then, upon his death without heirs, the title, if it had passed out of the Commonwealth by the patent, was immediately vested in the Commonwealth; and if the grant to Duncan Rose, from the Commonwealth of Virginia, includes the land in controversy, then the act of Kentucky, granting the land to N. and I. Governeur, cannot, under the articles of the compact between Virginia and Kentucky, overreach the grant to Duncan Rose from the Commonwealth of Virginia; and they ought to find for the defendants.
3. That the plaintiff, showing no title or connexion with Robertus S. Brantz, but through and by virtue of the act of Kentucky, given in evidence by plaintiff, such grant from Kentucky is, by virtue of the 3d and 5th articles of the compact with Virginia, of inferior dignity, and inoperative to overreach the grant by the State of Virginia to Duncan Rose.
4. That the acts of Kentucky of 1796 and 1799, given in evidence by the plaintiff, being in pari materia, are to be taken together; that the latter act is explained by the former, and by operation of said two acts, and of the said compact between Virginia and Kentucky, the title of the plaintiff, as offered in evidence by him, is younger in date, and inferior in dignity, and cannot overreach the grant to Duncan Rose, so far as those grants conflict.
5. That if they find that the grant to Duncan Rose, given in evidence, includes the land held thereunder by the defendants, then the grant of the Commonwealth of Kentucky, in the act given in evidence by the plaintiff, is the junior and inferior claim of title, and the jury ought to find for the defendants.
The Judges of the Circuit Court being divided in opinion upon the instructions moved, the division was certified to this Court.
Feb. 22d.
The counsel for the plaintiff made the following points:
1. That Robertus S. Brantz, both at common law, and by the special provisions of the act of Virginia of 1779, c. 13. s. 3. upon his naturalization, took and held an indefeasible title to the lands in question, under his grant.
2. That, consequently, the junior grant to Duncan Rose was void, and conferred no title; and, of course, could not have estopped Virginia if no separation had taken place; and, therefore, could not estop Kentucky, by the articles of compact between the two States, from vesting the title to those lands, by the legislative act of 1799, in I. and N. Governeur.
The defendants' counsel insisted,
1. That R. S. Brantz being an alien when the grant of Virginia issued to him, the title did not pass out of the Commonwealth; therefore, the grant to Duncan Rose must be considered as the prior legal title.
2. That under the compact of 1789, between Virginia and Kentucky, the legislative acts of Kentucky of 1796 and 1799, under which the plaintiff claims, cannot overreach the prior grant from Virginia to Rose.
Mr. Sampson, for the plaintiff, argued, (1.) That it had been conclusively settled by a uniform series of decisions in this Court, that an alien can take, and hold, real property, either by grant or devise, until office found. The grantee of the State takes by purchase as much as a private grantee. In Craig v. Radford, the alienage of a grantee from the State was presented distinctly as a positive bar to his taking, but the Court determined the grant to be good, and the decision of that point was inevitably involved in the determination of the cause. And there was no reason, either of policy or law, for making a distinction between a public and a private grant. The title of the government being devested by the grant, which is matter of record, it could not be revested again but by an inquest of office, by which alone the fact of alienage can be determined. Every person resident in the country is presumed to be a citizen until the contrary is shown by a judicial proceeding. The government, having once invested its grantee with a title, cannot deprive him of it but in due course of law; and the inquest of office is the appropriate process, where the title to lands is in controversy. But, it might be contended, that the grant of the State to an alien is absolutely void, and not voidable merely; and a passage in Vin. Abr. might, perhaps, be relied on for that purpose. But this would be found to be a mere insulated dictum, unsupported by any other authority, or by any adjudged case. In Page's case, it was 'resolved, that in the case of an alien,' &c. 'the inheritance, or freehold of the land, is not vested in the king till office found under the great seal; for that is an office of intitling.' The grants of the king are not void, unless the defect for which they are sought to be avoided appear on the face of the grant. So, here, the fact of alienage not appearing in the grant to B., is sufficient to show that it was not void. If it were contended that an alien could not take, because he could not hold, the answer would be, that he shall take and hold, until it shall appear, in the manner the law requires, that he cannot hold. The subsequent naturalization of R. S. Brantz had a retrospective effect, and confirmed and rendered valid his title, which was before subject to be defeated by an inquest of office. So, also, the act of 1796 would have had the effect of confirming his title, even if he had never been naturalized. But his naturalization in Maryland was sufficient to give him all the privileges of a citizen in Kentucky, and, among others, that of holding lands, under the articles of confederation before the establishment of the present constitution. And, even supposing his title as an alien to be defective at common law, that defect was completely cured by the statute of Virginia of 1779, c. 13. s. 3. which provides, that 'All persons, as well foreigners as others, shall have a right to assign or transfer warrants, or certificates of survey for lands; and any foreigner purchasing lands, may locate and have the same surveyed, and after returning the certificate of survey to the land office, shall be allowed the term of eighteen months, either to become a citizen, or to transfer his right in such certificate of survey to some citizen of this, or any other of the United States of America.' and it is not for him to say that he misinformed the government, and having surveyed not vacant, but lands already appropriated, had thereby entitled himself to be considered a purchaser without notice. There is a difference, in this respect, between grants by the government, and mere private conveyances. The grantee having failed to comply with the condition of the grant, the State could not be bound by it, or estopped by it from again asserting dominion over the lands, and re-granting them to another. The grantee takes an immediate title, or none at all. Even a grant made expressly to commence in futuro would be void. make him a denizen, so that he may take. A grant from a private citizen to an alien takes effect by act of the parties; a grant from the government takes effect by act of law. An alien may take by purchase from an individual, because it is for the benefit of the government that he should be allowed to take, in order that the title may pass to the government by escheat. But if the same effect were allowed to a grant from the government to an alien, it would be for the mere vain purpose of devesting the title of the government, and vesting it in a party incapable of holding it, in order to revest the very same title, by means of an inquest of office. Such a proceeding would be contrary to all the analogies of the law. An alien cannot take by act of law. An alien cannot, therefore, take as heir, or tenant in dower, or by the curtesy. The reason why an alien cannot take in this manner is, because the law does nothing in vain; and it will not, therefore, confer by grant an estate on the alien which he cannot hold, for the nugatory purpose of taking it back again by an inquest of office. This is the reason assigned by Lord Chief Baron Hale, and by Mr. Chancellor Kent. The incapacity of aliens to take, is founded on reasons of national or civil polity, rather than on principlcs strictly feudal. restrained and disabled from granting to an alien; he was incapable of receiving it; the grant was not made in the order and manner required by law. The title of the public demesne lands in England is vested in the crown; the king has, by the constitution, the sole power of granting them. But the king cannot, by his grant to an alien, render him capable of taking. In Virginia the title was in the people, or Commonwealth; not in the Governor, Register, or other public officer. They could only grant the land in pursuance of the express provisions of law. which shall be located on land within the said District, on or before the first day of September, 1791.' So that the stipulations of the compact of 1789, secure all vested as well as contingent claims and titles to land, and provide for their determination by the then existing laws of Virginia. By the laws of that State then in force, the title of Brantz (supposing him to have had any) was cast upon the Commonwealth, by his death without heirs capable of taking by descent.s The interest of Rose under his patent became valid and secure by the third article of the compact, and, under the fifth article, it could not be interfered with by any grant from the State of Kentucky. Every political society or government is bound by the ties of justice and morality, and to the observance of good faith in its contracts with individuals. The grant of 1785 to Rose, was a contract between the State of Virginia and the grantee. If a private individual sells land without title, and subsequently acquires a title, it enures to the benefit of his grantee. A vendor, purchasing in an outstanding title, cannot use it against his vendee. The same rules which are just and equitable as between individuals, are binding on governments. The legal maxim, that the king, or the commonwealth, can do no wrong, implies the highest degree of moral excellence in the collective body of society, and those who represent it. Every prerogative being created for the benefit of the citizen, none of the powers of the government can be exerted to his prejudice. Hence the maxims, that the prerogative of the king is no warrant to do wrong; the king is estopped, and by his prerogative can do no wrong. Virginia, therefore, could not violate the obligation of her contract with Rose, by using the interest of Brantz when it lapsed in 1797, by his death, without heirs capable of inheriting. A legislative act of Virginia, (had she retained her sovereignty over the territory of Kentucky,) passed in 1799, to grant the land to Governeur, without regard to the vested interest of Rose, and those claiming under his grant, would have been a law impairing the obligation of contracts within the prohibition in the constitution of the United States. Such a law, made by Kentucky, is equally prohibited by her treaty with Virginia. But the acts of 1796 and 1799, (which, being in pari materia, are to be construed together,) do not constitute such a law. The former act confirms the title of Brantz, with the proviso, 'that nothing in the said act should affect the right or title of any other person or persons.' The subsequent act transfers the estate to Governeur, as Brantz held it, subject to the proviso. It was not necessary, in the act of 1799, to repeat the proviso in that of 1796. It was sufficient to do what the act does, transfer the estate, after the death of Brantz, to Governeur, 'as if the said Brantz had done (it) in his lifetime.' This construction makes the acts consistent with good faith, with the compact with Virginia, and with the eternal principles of justice. that it passed a vested interest capable of being transmitted from one to another by deed or will; that such interests of the junior patentee are treated as legal, and not mere equitable interests, and still less as non-entities, a number of cases from the local decisions were cited. patent until 1788, and it is not, therefore, of this that the Court speak, when they say that he took the estate 'during the war,' and was not devested by any act of Virginia before the treaty of 1794, by which his title was confirmed. But the Court meant to refer to the act of Virginia of 1779, (passed during the war,) by which the legislature declared, that the surveys under the proclamation of 1763 were valid. All the other cases cited to show that an alien can take by grant, and hold, until office found, are cases of grants, or devises, from private individuals to an alien. The distinction between such conveyances and grants from the crown, is to be found in all the authorities, from the year books down to the latest elementary writers.
March 13th.
Mr. Justice JOHNSON delivered the opinion of the Court.

## Notes

a Fairfax v. Hunter, 7 Cranch's Rep. 603. Craig v. Radford, 3 Wheat. Rep. 594. Craig v. Leslie, 3 Wheat. Rep. 563. Orr v. Hodgson, 4 Wheat. Rep. 453.
b Co. Litt. 18 b.
c 3 Wheat. Rep. 594.
d 1 Bac. Abr. Alien. C. 133.
e 5 Co. Rep. 52.
f 2 Bl. Comm. 250. 1 Johns. Cas. 399.
h 5 Cranch's Rep. 253.
i Legat's case, 10 Co. Rep. 113. Alton Wood's case, 1 Co. Rep. 51.
j Noy's Max. 10. 4 Co. Rep. 61. Plowd. 432. 10 Co. Rep. 62.
k Berwick's case, 5 Co. Rep. 94.
Mr. Bibb, for the defendant, argued, (1.) That R. S. Brantz, being an alien when the original grant from the State issued to him, took nothing thereby, but the title remained in the government. He admitted the general rule, that an alien may take by purchase, and hold until office found; but he insisted that the principle applied only to a private grant or devise by a citizen. At common law, a grant from the sovereign to an alien passes no title. l The grant of lands to an alien by the king, operates nothing; it shall not
m 2 Bl. Comm. 351. Tucker's ed. 344.
n Calvin's case, 7 Co. Rep. 25. Co. Litt. 2 b. 3. a. 31. a. Plowd. 229. 2 Bl. Comm. 252. Tucker's ed. 249. Hunter v. Fairfax, 7 Cranch's Rep. 619. Orr v. Hodgson, 4 Wheat. Rep. 460.
o Collingwood v. Pace, 1 Ventr. Rep. 417. Mooers v. White, 6 Johns. Ch. Rep. 365.
p 1 Bl. Comm. 392. 2 Bl. Comm. 258. 2 Bl. Comm. 278.
The principles and policy of the common law in this respect, have not been changed by the local laws of Virginia. The act of 1779, c. 13. under which the grant to Brantz purports to have been issued, manifests clearly the legislative intention not to permit aliens to take by grant, since it provides that they may purchase warrants, assign them, have them located and surveyed, return the plats and certificates to the Register's office, and then shall be allowed the term of eighteen months either to become citizens, 'or to transfer such plat, and certificate of survey, to some citizen of this, or any other of the United States of America.' Expressio unius est exclusio alterius: and this enumeration of privileges to aliens, all of which are in derogation of the common law, excludes that of obtaining a grant to himself whilst he continues an alien. Brantz, then, having procured this grant to himself whilst an alien, contrary both to the common and statute law, as well as the rules of the land office, the act of the Register, and of the Governor, in so issuing the letters patent, was unauthorized, and, as such, was absolutely void. q All the requisites to a valid grant were wanting in this case. r The public officers were
t Green v. Biddle, 8 Wheat. Rep. 1. 1 Marsh. Kentuck. Rep. 199. 3 Marsh. Rep. 219. 1 Monr. Kentuck. Rep. 60. Littel. Rep. 364.
u Fletcher v. Peck, 6 Cranch's Rep. 87.
v Barr v. Gratz, 4 Wheat. Rep. 222.
w Magdalen College case, 11 Co. Rep. 72.
x Plowd. Rep. 246-248, 249.
But, it had been argued, that the king's grants are not void, unless the fact of alienage appears on the face of the grant itself. It had, at the same time, been asserted, that Rose's grant was absolutely void, although the fact of the patent previously issued for the same land, does not appear on the face of his grant, but is to be proved by other evidence. But, when the authorities speak of a grant as void, all that is meant is, that it shall be held inoperative, and of no legal effect, whenever the facts which invalidate it shall appear. Whenever, by the pleadings between other parties, the facts show the king's title, judgment shall be given for him, although he is not a party. y A great variety of cases might be mentioned, where a resort to evidence in pais would be necessary to determine the validity of the grant. That the grant to Rose was not void, in the sense supposed, but that it was evidence of a contract between Virginia and the grantee
z 1 Marsh. Kentuck. Rep. 525. 3 Bibb's Rep. 535. 4 Bibb's Rep. 225. 1 Monr. Rep. 48. 189. 138.
As to the case of Elmendorf v. Carmichael,
The case of Craig v. Radford
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* ↑ which had been cited as determining the questions in this cause, it could have no weight as authority in this Court, because it did not decide the point as to the construction of the compact of 1789; a subject peculiarly of federal jurisdiction, which was involved in several other cases, all of which would be brought before this Court for revision. The opinions, therefore, of the State Judges, in that case, could be entitled to no more respect than the judgments of any tribunal, State or national, which this Court might be called on to revise on error.
* ↑ had been cited as determining the question, that an alien can take by direct grant from the government. But, it would be found, upon examination, that Sutherland, under whom the respondent claimed in that case, was entitled to a bounty in land under the proclamation of 1783, for military services during the preceding war, and that he obtained his warrant and survey in 1774, at which time he was not an alien. He did not obtain a