# Doe v. Governeur's Heirs Robertson/Opinion of the Court

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* Opinion of the Court
This cases comes up from the Circuit Court of Kentucky, upon a difference of opinion certified from that Court.
The case was this: Robertus S. Brantz, through whom the plaintiffs make title, obtained, on the 11th of October, 1784, two grants from the Commonwealth of Virginia, comprising, together, ten thousand acres of land lying in Kentucky.
One Duncan Rose, through whom the defendants make title, obtained a similar grant, of the date of December 2d, 1785, covering a part of the same land.
Robertus Brantz, at the date of his patent, was an alien, but became naturalized in Maryland on the 8th of November, 1784, less than one month after the date of his patent, and near a year before that of the defendant was obtained.
Some doubts appear to have been raised on the validity of Brantz's patent at an early period, and, in the year 1796, the legislature of Kentucky passed an act, reciting that B. was an alien when the patent issued, and affirming his estate as against the rights of the Commonwealth, leaving it to operate as to all other persons as if that act had not passed.
B. died in 1797, leaving a son, J. B., an alien, incapable of inheriting, and owing debts to a considerable amount to the Governeurs. The son, unaware of his disability, executed a letter of attorney, under which the land was sold, and the purchasers, the Governeurs, subsequently discovering this defect, obtained another act from that State affirming their estate.
And this makes out the plaintiffs' title.
The defendant's title is regularly deduced through the patent to Duncan Rose.
The record presents, first, a general instruction prayed for in behalf of the plaintiffs on their right to recover. And of this there can be no question independently of the points made in the instructions moved for by the defendant, having regard to the effects, 1st. of his alien character; 2d. that of his son; and, 3d. of the compact between Virginia and Kentucky on the rights of the parties.
These will be considered in their own language, and in their order. The first is,
'That if the jury find that R. S. B. was an alien at the time when the patents given in evidence were procured by him, nothing passed to him by the said patent, but that it was void.'
Although this, as well as the subsequent prayers of the defendant, purport to present distinct propositions, it will be unavoidable that they should be considered in connexion with each other, and with reference to the general prayer of the plaintiff for a charge in his favour. The defendant's object in propounding them, is to repel the prayer of the plaintiff, and to obtain a charge that the jury should find in his favour. They are introduced, in fact, as grounds upon which the prayer of the plaintiff should be rejected.
And, in this view of the subject, the proposition stated draws after it the consideration of another, to wit: Whether, although the patent to Brantz should be pronounced void, in consideration of his incapacity to take at the time of its emanation, his subsequent naturalization did not relate back so as to obviate every consequence of this alien disability.
On this subject of relation, the authorities are so ancient, so uniform and universal, that nothing can raise a doubt that it has a material bearing on this cause, but the question whether naturalization in Maryland was equivalent to naturalization in Kentucky. To this the articles of Confederation furnish an affirmative answer, and the defendant has not made it a question. Nor, indeed, has he made a question on the subject of relation back; yet it is not easy to see how he could claim the benefit of an affirmative answer on the question he has raised, without first extricating his cause from the effects of the subsequent naturalization, upon the rights derived to Brantz through his patent.
The question argued, and intended to be exclusively presented here, is, whether a patent for land to an alien, be not an absolute nullity.
The argument is, that it was so at common law, and that the Virginia land laws, in some of their provisions, affirm the common law on this subject.
We think, the doctrine of the defendant is not to be sustained on either ground.
It is true, Sir William Blackstone has expressed himself on this subject with less than his usual precision and circumspection; but, whether the context be considered, or his authorities examined, we shall find that this doctrine cannot be maintained. The passage relied on is found in his second volume, (p. 347, 348. of Christian,) in these words, 'If the king grants lands to an alien, it operates nothing.' But it would be doing injustice to the writer not to weigh his meaning by the words preceding and following this sentence. His language is this, 'But the king's grant shall not enure to any other intent than that which is precisely expressed in the grant. As, if he grants lands to an alien, it operates nothing; for such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant.' And the authority referred to is Brooke's Abr. Patent, 62. and Finch's Law, 110. (It ought to be 111.)
If we could admit that this learned writer could have committed so egregious a blunder as to suppose that an alien must be made denizen before he could take by grant, as a general proposition, he might stand charged with having greatly transcended his authorities. But when it is considered, that the effect of an alien's being made denizen, is not to enable him to take lands, but to enable him to hold them against the king, we at once see, that his language is to be limited to the proposition laid down in the previous sentence, to wit: that the king's grants shall not enure to the double intent, when made to an alien, of vesting in him the thing granted, and then, by implication, constituting him a denizen, so as to enable him to hold an indefeasible estate.
In the case referred to as abridged by Brooke, the latter proposition alone is laid down; and the case in the Year Books, which the author cites, affirms nothing more. This was Bagot's case, (7 Edw. IV. p. 29.) which appears to have occasioned a vast deal of discussion for several terms in the British Courts, and in which Bagot, and another grantee of an office by the crown, brought assize, and the defendant pleaded, as to Bagot, alien nee. In that cause there was no office found, and the question on this part of the case distinctly was, whether the grant did not both vest the right to the office, and create a capacity to maintain assize to recover it. So, in a case in 4 Leon. 82. the same question was raised, where there had been an inquest of office; and in both, the decision distinctly was, that the king's grant did not enure to an intent not expressed distinctly as its object; or, in other words, to a double intent, one direct, the other incidental. In the latter case, the alien's right had been affirmed by a patent from the queen, and the point argued was, that the right of the party was protected by the act of the queen against the effect of the office found. But, in both these cases, the decision was no more than this, that the act of the crown did not incidentally make the party a denizen; and while an alien, he could not be enabled, by any act of the crown, to exercise rights which appertained only to denizens, or to persons naturalized, or natural born subjects.
The other authority to which Blackstone refers, to wit, Finch, imports no more than that an alien shall not maintain an action real or mixed, but has no direct bearing upon the doctrine for which it seems to have been cited by the author.
The words, in the passage in Blackstone, more immediately relied on by the defendant, to wit, 'If he grants to an alien, it operates nothing,' are obviously taken from another passage in Brooke's Abr. Patent, 44. which article gives those words as a dictum of Keble, one of the Judges. And by referring to the authority in the Year Book, on which the author relies, to wit, 2 Hen. VII. 13. the dictum is there found attributed to Keble. But, in that case, as in Bagot's case, there is nothing more argued than that the king's grant shall not enure to the double purpose. And the observation of Keble is only made by way of illustration, accompanied by several others of a similar character, such as that a grant of land to a felon shall not operate as a pardon; or a grant to a company not corporate, carry with it a grant of incorporation.
It is clear, therefore, that this doctrine has no sufficient sanction in authority; and it will be found equally unsupported by principle or analogy.
The general rule is positively against it, for the books, old and new, uniformly represent the king as a competent grantor in all cases in which an individual may grant, and any person in esse, and not civiliter mortuus, as a competent grantee. Femes covert, infants, aliens, persons attained of treason or felony, clerks, convicts, and many others, are expressly enumerated as competent grantees. (Perkins, Grant, 47, 48. 51. &c. Comyn's Dig. Grant, B. 1.) It behooves those, therefore, who would except aliens, when the immediate object of the king's grant, to maintain the exception.
It is argued, that there is an analogy between this case and that of the heir, or the widow, or the husband, alien; no one of whom can take, but the king shall enter upon them without office found. Whereas, an alien may take by purchase, and hold until devested by office found. It is argued, that the reason usually assigned for this distinction, to wit, 'Nil frustra agit lex,' may, with the same correctness, be applied to the case of a grant by the king to an alien, as to one taking by descent, dower, or curtesy: That the alien only takes from the king to return the subject of the grant back again to the king by escheat. But, this reasoning obviously assumes as law the very principle it is introduced to support; since, unless the grant be void, it cannot be predicated of it that it was executed in vain. It is also inconsistent with a known and familiar principle in law, and one lying at the very root of the distinction between taking by purchase and taking by descent. It implies, in fact, a repugnancy in language. Since the very reason of the distinction between aliens taking by purchase, and by descent, is, that one takes by deed, the other by act of law; whereas a grantee ex vi termini, takes by deed, and not by act of law. If there is any view of the subject in which an alien, taking under grant, may be considered as taking by operation of law, it is because the grant issues, and takes effect, under a law of the State. But this is by no means the sense of the rule, since attaching to it this idea would be to declare the legislative power of the State incompetent to vest in an alien even a defeasible estate.
That an alien can take by deed, and can hold until office found, must now be regarded as a positive rule of law, so well established, that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society, and a desire to protect the individual from arbitrary aggression. Hence it is usually said, that it has regard to the solemnity of the livery of seisin, which ought not to be devested without some corresponding solemnity. But there is one reason assigned by a very judicious compiler, which, from its good sense and applicability to the nature of our government, makes it proper to introduce it here. I copy it from Bacon, not having had leisure to examine the authority which he cites for it. 'Every person,' says he, 'is supposed a natural born subject, that is resident in the kingdom, and that owes a local allegiance to the king, till the contrary be found by office.' This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favour, a grant of freehold.
It remains to examine the effect of the Virginia laws upon grants made to aliens. Those laws provide that aliens may purchase warrants for land, and pass them through all the stages necessary to obtain a patent, and may exercise every power over the inchoate interest thus acquired, in the same manner with citizens, and after returning the plat and survey to the Register's office, shall be allowed eighteen months to become a citizen, or transfer their interests to those who are citizens.
These provisions, it is contended, import a prohibition to issue a grant to an alien.
But we think the inference by no means unavoidable; and, in addition to the general and strong objections to raising an enactment by inference, consider it as unsupported either by the policy or the provision of the act.
It is well known that the purchaser of a warrant, under the laws of Virginia, acquired a beneficial interest in the soil, that the survey located that interest upon a particular portion of soil by metes and bounds, and the interest thus acquired was devisable, assignable, descendible, and wanted, in fact, nothing but a mere formality to give it all the attributes of a freehold. Hence a doubt arose, not whether an alien could acquire an interest under a warrant and survey, but whether that interest might not be subject to escheat. The object of the law was to encourage aliens to purchase, and to settle the country; and all its provisions on this subject were intended to enlarge his rights, not to restrict them. Aliens arriving in the country could not immediately be naturalized, but they might immediately enter upon those arrangements for establishing themselves when naturalized, which were necessary to precede a grant. Hence, the only true construction of the Virginia law is, that as to all the interest acquired in land previous to grant, it was intended to enlarge their rights, and secure them from escheat; while, as to the rights which they might acquire by patent, they were to be left under the ordinary alien disabilities, whatever those were, which the law imposed.
The Virginia act, therefore, has no influence upon the rights of the parties in this cause.
The object of the next four prayers for instruction in behalf of the defendant, is, to maintain the proposition, that the act of Kentucky of 1799, which confirmed the interest of the purchasers under the letter of attorney of the son of Brantz, was in derogation of the rights of Duncan Rose, the subsequent grantee.
The argument is, that on the decease of the father, without an heir that could take, the land in controversy reverted to the State, and the junior patent then fastened upon it in the ordinary manner in which it attaches to the soil when a prior grant is removed from before it. That the act of 1799 was nothing more than a junior grant for the same land, and a grant which the State was estopped from making to the prejudice of the prior patentee, as well upon general principles, as under the provisions of the compact between the two States.
It is obvious, that in considering this argument, the Court cannot place the defendant on more favourable ground than by substituting Virginia for Kentucky, and allowing him all the rights that he might have set up against the former State. And it is equally obvious, that to admit of the right set up in favour of the junior patent's attaching as a patent upon the escheat, it must be affirmed that escheated land was liable to be taken up by patent; whereas the act authorizes patents to issue upon waste and unappropriated lands exclusively, and not upon escheated property. And so it has been settled by adjudications both in Kentucky and Virginia. (Elmendorf v. Carmichael, 3 Littel. Rep. 484.)
It is further obvious, that as to the claim set up by the defendant on the ground of moral right and estoppel, the Court will concede much more than he has a right to assume, if it allows him the benefit of his argument to the whole extent in which it may be applied to the rights and obligations of individuals. Assuming, argumenti gratia, that the State could not supersede the right of the defendant derived under his patent, in any case in which an individual would be estopped, or might be decreed to convey: But it is only on the ground of fraud or contract, that the law acts upon individuals in either of the supposed cases. Fraud is not imputable to a government; but if it were, where is there scope found for the imputation of it in the relation between a State and the patentee of its vacant lands? In selling the warrant, the State enters into contract no farther than that the purchaser shall have that quantity of vacant land if he can find it. And when the patent issues, it is to the patentee, if to any one, that the fraud is imputable, if the land be not vacant. The State never intends to grant the lands of another; and where the grantee is ignorant of the previous patent, the maxim, caveat emptor, is emphatically applicable to this species of contract.
But to what result would this doctrine lead us? A junior grant is to be vested with the attribute of hanging over a valid and indefeasible appropriation of soil, waiting to vest upon the occurrence of the casualty of an escheat or an indefinite failure of heirs? This may not happen in a hundred years; it may not occur upon one life as in this case, but may occur after the lapse of one hundred lives. It is impossible that such a claim can be countenanced. Neither principle nor policy sustains it. And, in fact, the decision upon the first ground is fatal to the cause of the defendant upon the last; for, upon no principle but the assumed nullity of the patent to Brantz, could any contract be imputed to the State to make good the junior patent, under which the defendant deduces his title. In that case, the land would still have remained vacant land, and, as such, the junior patent would, of course, have taken effect upon it as a patent, and by the immediate operation of the land law, without reference to the supposed incidental rights here set up.
So far this Court has considered the cause as one of a new impression; but, on examining the adjudications quoted, they are satisfied, that in every point material to the plaintiffs, the case has been solemnly adjudicated in the Courts of Kentucky.
They will, therefore, direct an opinion to be certified in favour of the plaintiff.

## Notes

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