The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-11-22
LAW .REPoRT-cosrlNv.D.
FUDGE FLEMlNGsS OPINION.

cred it under thoic three heads, Is fated by MIR.
Hay.
In. That the rent referyed on the Winehcner lots
linciuding thoie III controversy was quit-rent.
cd. That Id. Fairfax could not deviis, and that
Denny Martin gould net convey, the RICH, of entry
for forfeiture, incurred by non-paymens OF aren't.
And
Sd That Denny Martin, being an alien, could
not take by deficient or pa,eb4e.
With refpea to the fri point, it iis contended
that the rent of five fiillings tierlg, reerved on
the lots in queiton, was gait-,eat, and being aho
iGed by the a4 of 1888, the tenant incurred for
feureby the non aynent oft; and rely tate
ynent in the agreed cafe, that the iaid rent of five
" killings was iometimes called gyoInd-,en., and
." fometimes sai.-ycat, by tine collectors for Id.
Fairfax; and generally qgif-rsns, by the inhabt-
&c ants of the faid town of Winchelter." But there
appears to me clear diain&ion between the OF
sTrefcrvei on the Wincheter lots and the fhil-
Ing Cor every fifty Of waite and unappropriaed
lands, granted by the crown, under the regal GO
vernnIcnts and by Id. Fairfax, proprietor OF the
Northern Neck and generally denomnated, and dif-
tirgahed from other by the appella,ion of grit
nnt; the former being 500 fold greater than the
Inter ard if unpaid only thirty days after hecon,
ing due, aud tiitrefs whereof the faid rent might
be levied to b. found the premifes, the fame to
BE- forfeited; whereas in the latter cafe of real
Suit-rept, generally underltood by the community
st large to be fuch) the RENT muh have been three
years IN srrear, grants under the crown, and
years ti,ofe made by Id Fairfax and legal de-
,rand OF i made before forfeiture could have been
incurred and il fsens clear 60 me that the legla-
sure, when by a in 1885, they aboliihed the quiz
,enf' il the Northern Meek, had other fpecies Of
rent, than the latter, contemplation ASST is
pied in the fame clauie, with the uiia competition
OF lY4 per hundred acres, that, prevouly had been
paid well by the grantees under the regal govern
nent, all grants from TIE crown, as by thole in
the Northern Neck, TO Id Fairfax, proprietor
thereof: The faid act of 1875, relerving the faid
competition of I3i all grants thereafter to be If
iIed on entries made previous TO the pang the ad
be paid the regiaer Of the land Office and BY
him accounted for and paid into the public treafury
They could have contemplated the e,oyaa-
ysaiJ relerved on private contracts between Id Fair
fax and the purchaiers of lots in the town OF Winche
ter, which was eitabi;ihed rs town, by lpccal aa
Of aiemby ter thar purpofe, recognizing the fales
ct the lots by Id. Fairfax the particularly
Hated BY him, to the legifa ure which I conjer
as clearly ditnguilhng them from his general grants
Of waite and anappropriaeed lands.
with as much propriety conceive, might it be
urged, that the groU7renf r.(erved for ever on the
iales OF many OF the lots IN the city of Richmond are
gu'f-rs1fS and were abolhed by the as of l777 and
1878 which declare, that all lands within the COM
manweaish, ihall thence forward be exempted and
Siicharged from the payment of all gais-ers except
only the lands in the Northern Neck-It feems to
me, therefore, that the relerved on the lots in
queition, was not quit rent, butt properly, rent
f6ayss aud generally called, in this country ey.sr
yf7t and was neither comprsheDded in, nor affected
by the atl of 1885, NOT by any other ata, for the
abolition OF gmt-ysnhf.
hail nssf conGder MIR. Hays Sd point, That
Denny Martin being alien, could rot take by
detcen purchafe" becAufe, if he be correct in that
petition there End of the caufe as the dsviie of
the eate To him by Id Fairfax, naua of coneqaence
be void.
In recurring to the Englifh books on the fp5;ea
we and il laid down in Powell on devifes, SIG land
Knight DipieHis, I'd Vefey 500 cited) that it is
no oSje2on TO dsVjs, tuch thai he is an 4iiea
lot where i, was urged devfe, that fuppofng i,
well executed, yet, it would be void for tina, the
devee was an aim, and confequently incapable of
taking for her bere6t and then DE could no,
take by deejc; Lord Hardwicks iad, that he would
not into thar quenon infinitely, nor give an o.
Pinon upoa il; bur he did remember any doubt
or diitinttion made between grant, conveyance, |
or devte TO alien for an aim might take. The
only confederation therefore would be- for whole be-
neis; and if ne might take for the benefit of the
crown
There no rule Of law, or upon the Ratute Of |
wills, IN the way.--Powell then goes to obierye,
tina. this opinion Of Lord Hardw;cke, that an alien
may take by deyile ieems frongy countenanced by |
the opinion OF the court III the cafe of Godfrey & Dix
on, that covenant fand ieiZcd, ufe will arfe |
alien for if 70, then, if before the tatute of
wills, man had conveyed lands to the pfes Of his |
WILL and then devied the fame to an alien, fuch de-
caratiou Of the uie ouldhave been good becaufe ui
would have arfen TO him, well upon conveyaneeto
uies rponacovenant the principle beingthe fame 10
both cafes lffoadevife after the atutes of wills any
perfon vino capable Of taking before, by will diff
poirg Of an ufe, will be valid; for thoie fstates
made alteration the capacity Of the perlons to
fake by devile. Then, the queltion is whole ue,
sed for whole benefit he fal take and in that ref
pea there appears 70 be GROUND for distinguishing |
between the cafe Of devife, or of any other con-
Teyauee for when an aisn takes by WILL the eaate, |
the wills being coniummate, vets in him, and lie
is in, - oil iaenl aad fpeSs, any other devifee
would have BEEN until fonething further be done to
t2Se the etate deyfed of him again for as long
the 0ErH lives, the Inheritance is veled in the
king, nor fhal he have the land, until eFee }opad
and therefore, before Office found, recovery by an
acr-,ensn- tail will bar the remainders he being
tenant Of the land: but he die before Office, the
law cats the freehold and inheritance gpon the king
for want Of heirs, rier having So that the
title of the is collateral the tide Of the devifee
has retrofpct the time of its being confumnate
nor does aHeA the iaud in the devifee, until another
thing is done entitle the king, under the de-
wife, but by his prerogative, to wit, office found,
the tenant being an alien and, confequen,y, though
of capacity 70 take lands in his right, yet not
Of capacity 70 hold them.
Thus leen,s to tand the law of England refpe6f-