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Smith v. Maryland ex rel. Caroll & MacCubbin

Smith v. the State of Maryland, at the Instance and for the Use of Carroll and MacCubbin

Smith v. Md. ex rel. Caroll & MacCubbin, 10 U.S. (6 Cranch) 286 (1810)
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Court
Supreme Court of the United States
Decided
March 16, 1810
Judges
Washington
Citations
10 U.S. 2863 L. Ed. 2256 Cranch 2861810 U.S. LEXIS 344
Cited by 25
Headnotes
A writ of error lies to the highest court of a state, in A cáse where the question is •whether a con.fiscation under the law-of the «{Até was com•plete ' before the treaty of .p^ce with .Great Britian. By the confiscating note of Maryland the equitable inter-' eats of British subject? were confiscated, without office found, or'entry or other "act clone, and although such equitable interests were not discovered until long after the peace.
Summary
• ' -ERROR to-tHe court of appeals of the state of Marylarid, being the highest court of law and equity in that stdte } and which affirmed the decbeé of the .chancellor of Maryland. The facts of the case appear to be éoiréctly stated in: the decree of the chancellor, which was as follows: “• The-material facts appearing in this case are, that 0« the 4th'of July, 1774, the lands mentioned in the hill were, conveyed by Anrie Ottey, heir at laxo of Williams Ottey, tó Williám Smith, one of the defendants^- and-that art act of assembly, passed in June, 1779, fofrec'ording the deed of conveyance which had not been recorded-within the time limited by law. That On the Sthof July* 1774, Smith executed a bond of conveyance to Anne-Ottey, -widow of William. Ottey, and that at the time of passing'the act of October, 1780, c. 4-5. ‘ to seize, confiscate and appropriate all British property within this state,’ he held the said .lands under the said deed, subjeet to the terms of the said bond of conveyance, and in trust- .for the said Anne Ottey, then' and nów. a-British subject, and that the lands are now held in the same manner.' That' on the 27th of April,. 180f, the complainants, Carroll and Maccubbin, gave information of this property being so held, to the state’s agent, and claimed the composition held out by law bn the. said information. That on, the 22d of February, 1803, the governor and Council agréed to.sell the state’s right to the said lands to the,, said Carroll and Maccubbin. -That a survey wgs made and aplatreturaed.ahd bond given for-the purchase-money on the 30th of April, 1803. ' “The object of. the bill is to compel the defendant Smith to .produce in this' court all deeds, papers and writings respecting the said land, and to convey the same to the said Carroll ánd Maccubbin, and fdr general relief, &c.; “ The positions rdied on by the complainants in their notes are, that the property so held in trust for a British subject; or in which a. British subject had an equitable interest, but no legal estate, was liable to confiscation under the laws of this státe, and was confiscated by them; and that there is nothing in any treaty between the United States and Gréat Britain, to protect the said property, or to prevent its being liable to their claim. “For the defendants it is contended that the 6th article of the treaty of the 3d of September, 1783, declaring that ttjere should be no future confiscations made, had the effect of preventing any transfer, by the executive, of property which might have been confiscated; but was ' only legally, and not actually transferred from private to public use, or from the possessor to the state ; and that such transfer by the executive must be considered as a future confiscation,, or setting apart for the public, property the use of which an individual had, and therefore contrary to the stipulations of the treaty. And it is also contended that' under the 9th article of the British treaty of the 19th of November, 1794, (by which it ' was agreed that the British subjects who then held lands in the territories of the United States should continue to hold them according to the nature and tenor of their respective estates and tides therein,) this property is protected, being then held by the defendant Smith, as agent of and for Anne Ottéy, a British subject, and there, fore then held by her, “ In a case of this nature where an important question as to the operation of a treaty arises, it would be satisfactory to the chancellor to have the opinion of a court of law, or its judges. The late change in the judiciary has however rendered the obtaining such an opinion less practicable than it formerly was; and it appears also that the most material ground taken by the defendants has been already decided on by the general court in the case of Norwood's Lessee v. Owings. “ A number of points were decided in that case, but the one most applicable to the present question was the determination by the court, or the opinion expressed, that the^ state of Maryland by their commissioners was in possession of all British property within the .limits of the state, under and by virtue of the act of confiscation, October, 1780, c. 45. and the act of the same session c. 49. to appoint commissioners, See.: andthe possession of the said land was in the state of Maryland at the time the said Edward Norwood obtained his es-cheat warrant, and that no British subject' could hold land'in the state of Maryland on the 19th of November, 1794, the time when the treaty was entered into between Great Britain and the United States. “ It is not necessary at'this time to declare any opinion as to the intent and meaning of the 9th article of that treaty, or to ascertain to what part of the territories of the United States it might have applied. It is sufficient to observe.that according to the opinion of ther general court, standing as yet unreversed, it could not apply to this state. “ There is nothing in this case to iijduceThe chancellor to determine contrary to that opinion; and if the holding of the land by Smith"for Anne Ottey was a_ holding by her in October, 1780, and occasioned it3 confiscation, it cannot be considered that she held the land in November, 1794, so as to be enabled, by the 9th. article of the treaty with Great Britain then made, to. continue to hbld it according to the nature and tenor of her estate. . “ The words of the 2d section of the act of October, 1780, c. 45. .are,That all property within this state, (debts only excepted,) belonging to British subjects shall be seized, and is hereby confiscated’to the use of this state,’ and under this general expression, it is considered that, land in which the legal title was held by a citizen of this state in tru3t for a British subject, (as is the case now in question,) was included. “ That this- was the construction given to the act appears from the subsequent conduct of. the legislature’ and the executive of this , state, and particularly by the-first section -of the aet of 1784, c. 81. which directs, that the intendant of the revenue be authorized and required to call on all persons having confiscated British property in their possession, or: the title papers thereof, or relating thereto, to discover and deliver up the same; and if the said intendant has probable and good ground to ¡fuspect that any person holds the same in trust, for .any British subject, or conceals the same, or any deeds, writings or evidence of the titles to such property, he may anti shall direct the attorney-general to file a bill in the high court of chancery, on behalf of this state, for the discovery of such trust or concealed property, and for ,delivering up such deeds, writings, and evidence of title, to the same; thereupon proceedings shall be had, and decree made, according to the rules .oí the high court of chancery in such cases. “ And it will be observed that, by the fifth article of the treaty of 1783,the recommendation to be made fora resti-ution of property confiscated-, extends to all estates, rights and properties. . “ If, then, this property was confiscated, and the right to it vested in the state by the acts-of October, 1780, c. 45.’ and c. 49. the chancellor does not perceive how ifnsan be affected by the sixth article of the treaty of 1783, declaring that there should, be no future confiscations made. “ The future acts of confiscation to be restrained by that article were absolute confiscations, and not the dispositions that might be necessary for those which had been made. “ Such dispositions might have been the subject of consideration, if the recommendations made for a restitution of property confiscated, had been complied with, by this state. u Considering, then, the lands in question to have been confiscated, and that the right of the state, or those claiming under the state, is not affected by either of the treaties which have been relied on, it remains only to inquire as to the grounds of the complainants’ application to this court, and the nature of the relief to which they may be entitled. “ .The act of 1802, c. 100. under which the complaihantfc allege that the purchase was made, declares, that it shall andm.ay.be lawful for any person or. persons purchasing as aforesaid any confiscated British pro-, perty under the authority of this act, to prosecute any suit or suits, either in law or equity, in the name of the state, for recovery of said property for their use. “ If this property had not been sold,.it might have been competent for the state to have proceeded by suit to devest the legal estate from the defendant William Smith; and it seems consonant to equity, and to the pro. visions of the act.just mentioned, that in the present case it should be vested in the complainants, who Were the purchasers from the.state.” Then follows the formal part of the decree, that Smith should convey the land to Carroll and Maccubbin. From this decree Smith appealed to .the court of appeals of. Maryland, ,who confirmed the decree; whereupon he brought his writ of error to this court, under the' provisions of the 25th section'of the judiciary act of 1789, Laws U. S. vol. 1. p. 63. the. decision being against the right claimed under the treaty.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion — Washington

Washington, J.

* delivered the opinion of the court, as follows:

This cause comes before the court upon a writ of error to the court of appeals of the' state of Maryland», and the first question is, has the supreme court of the United States appellate jurisdiction in a case like the present ? It is contended, by the defendants in error, that the question involved in the cause turns exclusively, upon the construction of the confiscation laws of the state of Maryland, passed prior to the treaty of peace, and that no question, relative to the construction of that treaty, did or could occur. That the only point in dispute was, whether the confiscation of the lands in controversy was complete, or not, by the mere operation of those laws, without any further act to be done. If the former, it was admitted, on the one side, that the right of Ann Ottey, the' British subject, was not saved or protected by the treaty; if the latter, then it was agreed, on the other, that it was protected, and that no proceedings subsequent to the treaty, in order to perfect the confiscation, could be supported.

This argument proves nothing more than that the whole difficulty in this case depends upon that part of it which involves the construction of certain. state laws, and that the operation and effect of the treaty, which constitutes the residue of the case, is obvious so soon, as that construction is settled. But still the question recurs, is this a case where the construction of any clause in a treaty was drawn in question in the state court, and where the decision was against the title set up under such treaty? The only title asserted by the defendants in error, to the land in dispute, is founded upon ah alleged confiscation of them by ■ the state of Maryland, and a- conveyance to them of,the right thus acquired by the state. The title set up by the *305 plaintiffs in error, for Ann Ottey, and the only one which could oossibly resist that claimed by the grantees of the sta e, is under the treaty of peace ; the 6th article of whicV protects her rights, provided the confiscation, by tbt laws of the state, was not complete prior to the treay. The point to be decided wa9 and is, whether this be a case of future confiscation, withiñ the meaning of the 6tl article of that treaty ; and, in order to arrive at a correclresult in the decision of that point, it became necessary, in the state court, and will be necessary in this, b inquire whether the confiscation, declared by the stite laws, was final and complete, at the time the treaty vas made, or not? The construction of those lawsjthen, is only a step in the cause leading to the constriction and meaning of this article of the ' treaty; and it is perfectly immaterial to the point of jurisdiction,that the first part of. the way is the most difficult to explore. Although the defendant’s counsel admit, aid the supreme court of the state may, in this particulai case, have decided, that, where the confiscation is not complete before the treáty, the estate attempted to be confiscated is protected by the treaty, still, if, actording to the true construction .of the state laws, this court should be of opiñion that the acts of confiscation left something to be done necessary to the perfection of the title claimed under them, which was net done at the time the treaty was made, we ‘must say hat, in this case, the construction of the treaty was drawn, in question, and that the decision of the state court was against the right set up, under, the treaty, by one of the parties.

This leads to the consideration of the merits of the cauáe, which depend upon the question before stated, viz. whether the confiscation of the lands in question was so far cpmplete by the laws referred to, that the title and estate of Ann Ottey was, devested, out of . her and vested in the state, prior to the treaty of peace ? This must - depend upon the true construction of the acts passed, in the year 1780, chapters 45. and 49.-as it is not pretended that any proceedings were instituted in the nature of an office, to complete the forfeiture *306 of these lands, upon the ground of aliena ge or otherwise.

Thé first law declares generally that “ all property within ■ this state, belonging to British subjects, debts only excepted, shall be seized, and is hereby confiscated to the use of this state.” Anticipating, as it would seem, that .questions might arise, after peace, in respect to lands not proceeded against according to .the rules of the common law, the legislature, in the same session, passed a second law, appointing certain commissioners, by name, to preserve all British property seized and confiscated by the former law, and declaring the said commissioners to be in the full and actual seisin and possession of all British property seized and confiscated by. the said act, without any office found, entry, or other act to be done, with power to the said commissioners, to appoint fit persons to enter and take possession of said property, for the purpose of its preservation.

It would seem di/ficult to draught a law more completely operative to devest the whole estate of the former owner, and to vest it in the stat£. ,The arguments against giving to these laws such an effect are, that the expressions used in these laws do not import a confiscation of merely equitable estates^ .and jhat no estates were intended to be confiscated, but such, as were discovered and seized into the hands of the-state, prior to the-treaty. :

It is true that the word property, used in both Jaws, means the thing itself, intended to be affected by them, whether it were land or personal property ; but then it is equally clear that the thing itself, whatever it might be, ceased, by the operation of these laws, to-belong to the British subject, and became vested in the commissioners, for .the use of the state,- The cestui que trust, though not in possession of the property, was, nevertheless, the real owner of it, and, if the property or thing itself had Come into the actual possession of the - commissioners, who would have held; it to the use of the state, it would seem difficult to maintain the position, that a scintilla of interest *307 «r estate remained, for an instant afterwards, in the former owner.

But no act of the commissioners was necessary in order to obtain séisin in the land, to support the use thus transferred from Ann Ottey to the state. No seizure was necessary. The second law considers that all property belonging to British subjects was, by the mere Operation of the first law, seized and confiscated; and declares that the commissioners were then in the full and actual seisin and possession of the property,, so seized and confiscated by the first law, though no entry or other act had or should be made or done.

Being thus in the actual seisin, under the second law, which seisin had been declared, by the first law, to enure to the use of the state, it is perfectly immaterial at what time the right of, the state to the lands, how in controversy, thus completed prior to the treaty, was discovered, or at what time actual seisin and possession was obtained. From the time that the second* law came into operation, the possession of the trustees of Ann Ottey either ceased to be legal, or it was to be considered as the possession of the commissioners to the new use which had been declared by law. The present suit is between persons claiming under the state, and others who either held the lands wrongfully, or for the use of the state, and it is, in no respect, necessary to the perfection of the change of the property produced by the laws of confiscation.

Judgment affirmed, with costs.

* The Chief Justice did not sit in this cause. The judges present1 were Washington, Johnson, Livingston and'Todd.^

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Cited by 25 cases

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