ERROR to the Circuit Court of Kentucky.
This was an ejectment in the Court below, brought to recover the possession of lot No. 18, in the town of Danville, in the State of Kentucky. It appeared, from the evidence in the cause, that the plaintiffs are the heirs of John Dunlap, who was a citizen of Pennsylvania, and claimed as the heir of his brother, James Dunlap, who died seised of the premises in question, in the autumn of 1794. James Dunlap was an alien, and a subject of the king of Great Britain, who came to the United States subsequent to the treaty of peace of 1783, and died before the signature of the treaty of 1794. After his death, one Hunter, professing to have purchased of John Dunlap, entered into possession, and conveyed to several persons, parcels of the lot; and to the defendant, Rochester, one parcel, in 1795, who entered into possession thereof, and has occupied the same ever since; having acknowledged the title of said Dunlap, as that under which he held.
Upon this evidence, the counsel for the plaintiffs moved the Court to instruct the jury,
1st. That if the jury find the defendant obtained possession under James G. Hunter, who obtained possession as the attorney of John Dunlap, or who claimed under an executory agreement with John Dunlap, and that said defendant has held, and occupied under John Dunlap's title, claiming from said Hunter, as the attorney of said Dunlap, or under an executory agreement, or has, since he was in possession, acknowledged the title of said Dunlap, as that under which he held; that then the defendant is not permitted to impeach or controvert the title of said John Dunlap, by parol evidence that James Dunlap was an alien.
2d. That if the defendant, Bochester, acquired the possession, and has continued to hold as above, the possession of the defendant was no such an adverse possession as would toll the right of entry of said John Dunlap, and the statute of limitations does not apply.
3d. That if James Dunlap occupied the lot, from the date of his deed till his death, and said James G. Hunter and the defendant have continued to hold it under the claim of John Dunlap, his brother, as heir to James; that from these facts, connected with the evidence in the cause, and in the absence of any proof of an inquisition or office found as to the alienage of James Dunlap, and in the absence of any grant or other act of the commonwealth or its officers since the death of said James, in derogation of the title of said James or of said John, they should presume that said James was a citizen of the United States.
4th. That if they believe the evidence, they should find for the plaintiff.
5th. That the jury have a right to presume that James Dunlap was a citizen of the State of Virginia, or of some one of the United States, and if so, John Dunlap was his heir, and capable of inheriting.
6th. That if James Hunter entered under a parol agreement with John Dunlap, the possession of said Hunter was the possession of said Dunlap
7th. That the inheritance claimed by John Dunlap, as heir to James, is protected by, and within the provisions of the treaty between the United States and Great Britain, signed 19th November, 1794.
The Court refused the 1st, 3d, 4th, 5th, 6th, and7th instructions, moved by the plaintiff; and gave the second, with this qualification, 'that if John Dunlap had either title or the actual possession of the premises after the death of James Dunlap, and before the entry of said Hunter, or of the defendant, then the statute of limitations did not apply.'
The defendant moved the instruction, that if, James Dunlap was an alien, and died before the 19th November, 1794, then the plaintiff has made out no title to the land in question which will authorize them to find for him; which was given by the Court with this qualification, that if the jury find that John Dunlap had actual possession of the premises after the death of James Dunlap, and prior to the time when Hunter took possession, in that event this instruction would not be given.
Mr. Bibb, for the plaintiff, (1.) stated that the first instruction, moved on the part of the plaintiffs, involved the proposition that Hunter, who entered, claiming under John Dunlap, would be estopped from denying John Dunlap's title by parol, and that the defendant, Rochester, who entered under Hunter, stands in the same predicament with his grantor, and is besides precluded by his own acknowledgment from denying the title from which his own is derived.a
a Jackson v. Stewart, 6 Johns. Rep. 34. Jackson v. Reynolds, 1 Caines' Rep. 444. Jackson v. Whitford, 2 Caines' Rep. 215. Brandt v. Livermore, 10 Johns. Rep. 358. Jackson v. Hinman, Ib. 292. Jackson v. Bush, Ib. 223. Jackson v. McLeod, 12 Johns. Rep. 182. Jackson v. Graham, 3 Caines' Rep. 188. Phillips v. Rothwell, 4 Bibb's Rep. 33. Connelly v. Chiles, 2 Marsh. Kent. Rep. 242.
b Barr v. Gratz, 4 Wheat. Rep. 214. Jackson v. Reynolds, 1 Caines' Rep. 444. Jackson v. McLeod, 12 Johns. Rep. 182. evidence, of itself, to warrant the jury to find John D. a citizen, if that were necessary to perfect his title. Omne majus continet in se minus: the acknowledgment of his title involved the admission of the fact that he was a citizen.c
c Co. Litt. 52. b. Noy. Max. 16-17.
d Litt. s. 396, 397. Co. Litt. 242. Bull. N. P. 102.
e 12 Johns. Rep. 368. 1 Marsh. Kent. Rep. 62. 2 Bibb, 506. thereof, shall be in writing, and signed by the party,' &c. Hunter having entered, claiming under John D., and showing no agreement between them, the statute applies to avoid any parol agreement; Hunter was, upon his entry, the tenant at will of Dunlap, and the defendant, coming in under Hunter, is in the same predicament.
f Harden v. Fisher, 1 Wheat. Rep. 300. Orr v. Hodgson, 4 Wheat. Rep. 463. words 'now hold' ought not to be confined to cases of actual occupation by British subjects or American citizens, nor to the exclusion of such as would be heirs but for alienage, but would apply to all those claims which were not actually seized upon, or confiscated by the respective governments of the United States or Great Britain; and which would, but for the treaty, be liable to be affected by the common law doctrines in relation to inheritance. If such be the true construction, John D. might inherit the property of James D. under the treaty of 1794, if James were an alien; because no act of the government has confiscated, escheated, or re-granted the premises.
2. The second instruction asked by the plaintiff was given by the judge below, but with a qualification. That qualification involves the questions discussed on the first instruction, by permitting the defendant to impeach the title of John Dunlap, or by requiring an actual entry by John, after the death of James, and before Hunter or the defendant entered. It is insisted that the pedis possessio of John was not necessary; that the entry of Hunter, claiming under him, enured to his benefit, and was sufficient to enable Hunter, and all claiming or holding under him, after such entry, to show title derived from John Dunlap.b
3. The third and fifth instructions prayed for, may be considered together. In withholding both these instructions, the Court has denied to the jury the right to infer one fact from another. From the long uninterrupted possession held under the title of the Dunlaps, and as against the defendant, who had acknowledged John Dunlap's title, the jury ought to have been permitted to fill, by intendment or presumption, after the death of both the Dunlaps, the only chasm alleged by the defendant to exist in that title. Before the establishment of a uniform rule of naturalization under the new constitution, the laws of the different States gave great encouragement to emigration, by conferring the privileges of citizenship on easy terms. The acknowledgment of John Dunlap's title by the defendant, his possession under it, and demand of a deed from John D., was sufficient
4. The fourth instruction may be considered as involving the previous instructions moved; for, if the defendant was stopped to deny John D.'s title, and the statute of limitations did apply to the case, then certainly the plaintiffs were entitled to recover. As to the statute of limitations, as the defendant claimed under John D., and looked to him for the perfection of his title, the possession of the defendant is not such an adverse possession as would toll the right of entry of the heirs of the said John D.d To bar the plaintiff in ejectment, the possession of the defendant must have been adverse in its commencement, and so continued.e The defendant admitted John D.'s title within twenty years before action brought, and the plaintiffs were residing out of the State of Kentucky, and consequently within the savings of the statute.
5. The sixth instruction asked is grounded upon the local statute of frauds and perjuries, which is similar to the English statute of frauds, 29 Car. II. c. 3, and avoids 'any contract for the sale of lands, &c. unless the agreement, or some note, or memorandum
7. The treaty of 1794, between the United States and Great Britain, is to be construed liberally, according to its spirit, and the good faith which ought to be observed between sovereigns. The words, 'now hold,' as used in the 9th article, do not mean an actual possession.f These expressions exclude titles acquired after the signature of the treaty, but embrace all titles before the treaty, not confiscated or annulled by legislative acts before the signature of the treaty. The latter clause of this article declares, that 'neither they, nor their heirs and assigns, shall be regarded as aliens.' As to all the cases provided for by that article, the inheritance is provided for without regard to the common law requisition of mutual or common allegiance between ancestor and heir; and the capacity to make title as heir is placed entirely upon the fact of private relationship between American citizens or British subjects, independent of their political relationship to the one or the other of the two governments. The treaty of 1783 had provided against future confiscations. Taking that and the treaty of 1794 together, as made in pari materia, the
As to the instructions asked to the part of the defendant, they are substantially involved in those which have already been discussed.
Mr. B. Hardin, contra, argued, (1.) That the defendant, Rochester, was not estopped from disputing the title of the plaintiffs. If the doctrine as applicable between lessor and lessee be insisted on, the answer is, that the defendant, if a tenant, is a tenant at will, with a parol permission to enter. This cannot estop, for no man is estopped by parol from alleging the truth. There must then be a deed to estop. An estoppel consists only of an instrument superior in dignity to the evidence offered. Suppose the fact to be, that John D. sold to Hunter, and that Hunter conveyed to Rochester, and it turns out that D. had no title, can he recover? If a lease be made by deed poll, and the lessor have nothing in the premises, the lessee is not estopped.g It is on principles of legal policy or moral honesty, and not of estoppel, that a lessee is not permitted to deny the estate of his lessor. The Court has some discretion in limiting the rule, because, being adopted to promote the purposes of justice, it is not inflexible. It applies only to a person who enters as tenant, and never to one who enters and claims in his own right. It cannot apply as between vendor and vendee, and certainly not where the latter never received possession from the former.
2. As to the treaties of 1783, and 1794, it is the settled doctrine of thie Court, that they were meant to provide only for titles legally existing at the time the treaties were signed, and not to titles subsequently acquired. It is true that it is not necessary that the parties should have an actual possession of seisin; but it is necessary that the title should be legally vested in them at the time the treaty was made.h
Mr. Chief Justice MARSHALL delivered the opinion of the Court.