Supreme Court of United States.
*538 Mr. Bibb, for the plaintiff.
Mr. B. Hardin, contra.
*543 Mr. Chief Justice MARSHALL delivered the opinion of the Court.
The exceptions taken to the opinion of the Circuit Court in this case, may be divided into two parts:
1st. Those which respect the actual title of the plaintiffs.
2d. Those which respect the ability of the defendant to contest that title.
1st. The title of the plaintiffs.
*544 They are the heirs of John Dunlap, who was a citizen of Pennsylvania, and claimed as the heir of James Dunlap, who died seised of the premises in the declaration mentioned, in the autumn of 1794. The defendants allege and prove that James Dunlap was an alien, and subject to the King of Great Britain, who came into the United States subsequent to the treaty of peace, and who died before the signature of the treaty of 1794, and whose title, therefore, is not protected by either of those treaties.
The Court having left the fact to the jury, their verdict has found that James Dunlap died previous to the signature of the treaty of 1794, and the question is, whether the Court erred in determining that this case was not either within the treaty of peace, or the treaty of 1794.
It has been decided that British subjects, though born before the revolution, are equally incapable with those born subsequent to that event, of inheriting or transmitting the inheritance of lands in this country. Consequently, the sole inquiry in this case respects the effect of the treaties between the United States and Great Britain.
The treaty of peace has always been considered as providing only for titles existing at the time; and as the title of James Dunlap was afterwards acquired, it can derive no aid from that treaty.
James Dunlap, therefore, if he continued to be an alien, continued liable to all the disabilities of alienage, one of which is an incapacity to transmit lands to heirs. Consequently, when he died, the next of kin could take nothing by descent. The treaty of 1794, *545 like that of 1783, provides only for existing rights. It does not give title. Had James conveyed, or devised the property to John, the title would have vested in him, subject to the right of the government to seize the land; and the treaty would have confirmed that title, so if the law would have vested the estate in him by descent. But as the fact is he had no title, nothing on which the treaty could operate. It has been said that this Court has never supposed actual possession to be necessary to entitle a party to the benefit of the treaty. This is true. But the existence of title, at the time, has always been supposed necessary.
The plaintiffs also insisted that under the circumstances of this case, the jury might presume James Dunlap was a citizen.
The circumstances are the length of time which has intervened since his arrival in this country, and since his first acquisition of real estate, during which there have been no proceedings instituted under the laws of escheat and forfeiture.
The weight which might be allowed to this argument, had the property continued in the peaceable occupation of the heirs of James Dunlap, and had this presumption been required to sustain the title clothed with that possession, is, we think, diminished by the circumstance that the land was, soon after his death, claimed and occupied by a citizen of Kentucky as a purchaser. In such a state of things it is not surprising that no inquiries should be made into his citizenship, and that no person should feel disposed to intermeddle with the affair.
*546 The alienage of James Dunlap being fully proved, and the laws of Virginia requiring, as indispensable to his citizenship, that he should take the oath of fidelity to the commonwealth, in a Court of record, of which the Clerk is directed to grant a certificate, we do not think that this fact, which, had it taken place, must appear on record, ought to be presumed, unless there were some other fact, such as holding an office of which citizens alone were capable, or which required an oath of fidelity, from which it might be inferred.
In favour of long possession, in favour of strong apparent equity, much may be presumed; but in a case where the presumption would defeat possession, where the equity is doubtful, where the parties rely upon strict law, Courts will be cautious how they lean in favour of presuming that which does not appear, and which might be shown by a record.
The Circuit Court has declined giving the instruction which was required; but, on this point, has given no counter instruction, and has assigned no reason for refusing that which was required. It may have been, that the presumption in favour of a deed from John Dunlap so entirely balances the presumption in favour of the citizenship of James, as to prevent the allowance of either.
If James Dunlap could not be considered as a citizen at the time of his death, the plaintiffs have no title; and the only remaining question arising on the bill of exceptions, is was the defendant restrained *547 on the principle of estoppel, or any other principle, from resisting their claim.
It is contended that he is so restrained, because John Dunlap sold to Hunter, and Hunter has conveyed to the present defendant.
It is very certain, that these sales do not create a legal estoppel. The defendant has executed no deed to prevent him from averring and proving the truth of the case. If he is bound in law to admit a title which has no existence in reality, it is not on the doctrine of estoppel that he is bound. It is because, by receiving a conveyance of a title which is deduced from Dunlap, the moral policy of the law will not permit him to contest that title.
This principle originates in the relation between lessor and lessee, and so far as respects them is well established, and ought to be maintained. The title of the lessee is, in fact, the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his possession. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor, without disparaging his own, and he cannot set up the title of another, without violating that contract by which he obtained and holds possession; and breaking that faith which he has pledged, and the obligation of which is still continuing, and in full operation.
*548 In considering this subject, we ought to recollect, too, the policy of the times in which this doctine originated. It may be traced back to the feudal tenures, when the connexion between landlord and tenant, was much more intimate than it is at present: When the latter was bound to the former by ties not much less strict, nor not much less sacred, than those of allegiance itself.
The propriety of applying the doctrines between lessor and lessee to a vendor and vendee, may well be doubted.
The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become, by the sale, the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract violated by it. The only controversy which ought to arise between him and the vendor, respects the payment of the purchase money. How far he may be bound to this by law, or by the obligations of good faith, is a question depending on all the circumstances of the case, and, in deciding it, all those circumstances are examinable.
If the vendor has actually made a conveyance, his title is extinguished in law as well as equity, and it *549 will not be pretended that he can maintain an ejectment. If he has sold, but has not conveyed, the contract of sale binds him to convey, unless it be conditional. If, after such a contract, he brings an ejectment for the land, he violates his own contract, unless the condition be broken by the vendee; and if it be, the vendor ought to show it.
In this case a sale by John Dunlap to Hunter is stated, and a conveyance from Hunter to Rochester, the defendant, is also stated, but that conveyance does not appear in the record. Whether it contains any reference to the title of Dunlap, or not, is not shown. The defendant then holds in his own right by a deed of conveyance which purports to pass the legal title. The plaintiffs show no title in themselves, but allege and prove that the title under which the defendant claims is derived from their ancestor. They therefore insist that the defendant is bound in good faith to admit this title, and surrender the premises to them.
But the sole principle on which this claim is founded is, that the defendant must trace his title up to their ancestor, and is bound therefore to admit it. But if the deed of the defendant does not refer to their ancestor, and the record does not convey this information, the defendant holds in opposition to the title of John Dunlap, or claims to have acquired that title. If he holds under an adversary title his right to contest that of Dunlap is admitted. If he claims under a sale from Dunlap, and Dunlap himself is compelled to aver that he does, then the plaintiffs themselves assert a title against this contract. Unless *550 they show that it was conditional, and that the condition is broken, they cannot, in the very act of disregarding it themselves, insist that it binds the defendant in good faith to acknowledge a title which has no real existence.
Upon reason, then, we should think that the defendant in this case, under all its circumstances, is at liberty to controvert the title of the plaintiffs.
But it is contended that this question is settled in Kentucky by authority. There are also several cases quoted from the decisions in New-York, which we have not had an opportunity of examining fully. Those we have considered are, we think, distinguishable from this in some of their circumstances, especially in this material one, that the vendor gave possession to the vendee. But the decisions of one State, though highly to be respected, are not authority in another, especially with respect to land titles. In Phillips v. Rothwell, in 4 Bibb, 33. the defendant claimed under a conveyance from the tenant of the plaintiff. That case, therefore, was decided on the doctrine applicable to lessor or lessee.
The case in 2 Marshall, 242. was the case of a purchaser who had not received a conveyance, and who was not allowed to set up an outstanding title in a third person. The report gives us only the opinion of the Court, not accompanied by a statement of the case, or the points made at the bar. We therefore cannot tell whether, in asserting his title, the vendor acted in opposition to his contract. We cannot say that the condition on which the sale might depend had not been broken. There is, too, a difference between setting *551 up an adverse title in a third person, to controvert an actual existing title, and resisting a claim made by a person having no title whatever. In the case last mentioned it would appear that the plaintiff had a title which was in itself sufficient to maintain his action; but there was another, and perhaps a superior title, in a third person, with which the defendant was not connected. The rejection of all evidence of this title does not, we think, prove that the same Court would have compelled the defendant to acknowledge a title of which no evidence was given, or have rejected proof of any title in himself; especially when the vendee received nothing not even possession from the vendor.
Judgment affirmed with costs.
