for 788 acres of land lying in the County of Shenandoah, the parties, by their counsel, on the 9th of September, 1793, agreed a case, in substance, as follows: APRIL, 1810. Hunter V. Fairfax's Devisee. Code, p. 5. 1. That the act of Assembly entitled, "an act for confirming and better securing the titles to lands in the Northern Neck, held under the Right Honourable Thomas Lord Fairfax, &c.(a) truly recites the several grants or charters (a), 1 Rev. which were made by the Kings of Great Britain, to the predecessors or ancestors of the late Thomas Lord Fairfax, of and concerning that part of the territory of the then Colony, now Commonwealth, of Virginia, called and known by the name of the Northern Neck; and that all the estates, rights and authorities thereby granted to them were lawfully vested in him previous to the year 1736, and remained vested in him until the time of his death. 2. That, in the year 1748, an act of Assembly was passed, entitled, "An act confirming the grants made by his majesty, within the bounds of the Northern Neck," &c.(b) 3. That the said Thomas Lord Fairfax, proprietor of the said territory called the Northern Neck, in the year 1748, opened and kept and conducted at his own expense an office within the said Northern Neck, for granting and conveying what he described and called the waste and ungranted lands therein, upon certain terms, and according to certain rules by him established and published, and that such of the aforesaid lands as were granted and conveyed by him in fee, were granted and conveyed, in parcels, in a certain form, set forth at large in hæc verba; and that the said grants and conveyances in fee were transcribed and entered in books kept by him for that purpose, in the said office, by his own clerks or agents, and were uniformly alike, except as to grants and conveyances of lots in places laid off and designed for towns; that he kept the said office open for the purposes aforesaid, from the year 1748 till the time of his death, which happened in December, 1781; during all which time, as well as prior thereto, from the time he became proprietor as aforesaid, he exercised the right of 1 Rev. Code, p. 10. APRIL, 1810. Hunter Fairfax's granting and conveying in fee-simple, the lands called waste and ungranted lands as aforesaid, upon the rents, conditions and reservations contained in the grants and conveyances made by him; the rents reserved therein were paid to him as they annually accrued; and he also exercised the right of leasing for term of lives and for years (reserving annual rents) parcels of the said lands called by him waste and ungranted; which rents were also paid as they became due. 4. That the said Thomas Lord Fairfax was, at the time of his death, and for many years had been, a citizen and inhabitant of the Commonwealth of Virginia; that he duly made and published his last will and testament, which is set forth in hæc verba, and was admitted to record by the Court of Frederick County the 5th of March, 1782; in which will he devised all his "undivided sixth part or share of his lands and plantations in the Colony of Virginia, commonly called or known by the name of the Northern Neck of Virginia, to the Reverend Denny Martin, his nephew, of the County of Kent, in Great Britain, to him, his heirs and assigns for ever; upon condition that he should procure an act of Parliament to pass to take upon him the name of Fairfax and coat of arms. And that the defendant Denny Fairfax was the same person mentioned in the said will by the name of Denny Martin, and that he obtained the name of Denny Fairfax, and the Fairfax coat of arms, in conformity to the directions of the said will. 5. That the lands in the declaration mentioned are a part of the lands known by the name of the Northern Neckof Virginia; and are also the same lands for which a patent was granted to David Hunter, the lessor of the plaintiff, by Beverley Randolph, Governor of Virginia; (which is set forth in hæc verba, dated April 30th, 1789;) and are part of the lands called and described as waste and ungranted within the said Northern Neck, by the said Thomas Lord Fairfax, as aforesaid; and are of the value of five hundred pounds current money. 6. That Thomas Lord Fairfax died seised in fee of sundry tracts of land in the County of Frederick, and other counties in the said Northern Neck, containing altogether three hundred thousand acres, which had been granted and conveyed by him to Thomas Bryan Martin, in fee, upon the same terms, and in the same forms of other lands conveyed and granted by him in fee as aforesaid, which lands were soon thereafter reconveyed by the said Thomas Bryan Martin unto him in fee. 7. That "the defendant in this suit was born in England, a subject to the King of Great Britain, in the year 1750, is now, and ever since his birth hath been, a subject to the said King, and hath always inhabited within England, as well during the late war between Great Britain and America, which was ended by the peace made in the year 1783, as in all other times; and hath not made himself a citizen of the United States of America, or of any of them, by taking the oath of citizenship required by any law of the said United States, or of any one of them, and hath never been in any of the said United States, but always hath resided in England, where he now remains." 8. That a certain Thomas Bryan Martin is now, and always hath been, a citizen of the State of Virginia, and is the second son of the sister of Thomas Lord Fairfax, and the younger brother of the defendant; and that his said mother is now living, and always has been a British subject, and never hath made herself a citizen of the United States of America, or of any of them. 9. That a treaty of peace was finally made and concluded in the year 1783, between Great Britain and the United States of America, in hæc verba. APRIL, 1810. Hunter Fairfax's Devisee. Ch Rev. p. 10. They agreed the several acts of Assembly, entitled, "an act for establishing a land-office and ascertaining the (a) May, terms and manner of granting waste and unappropriated 1779, c. 13. lands;"(a) "an act declaring tenants of lands or slaves in 94. tail to hold the same in fee-simple;"(b) an act passed in the 1776, c. 26. (b) October, year 1784, entitled, "an act respecting future confisca- 45. Ch. Rev. p. APRIL, 1810. Hunter V. Devisee. tions;"(a) an act passed in the year 1785, entitled, “an act for safe keeping the land papers of the Northern Neck in the register's office;"(b) an act passed in the year 1779, enFairfax's titled, 66 an act declaring who shall be deemed citizens of this Commonwealth;"(c) an act passed in the year 1782, entitled, "an act concerning surveyors;"(d) an act passed in the year 1785, entitled, “an act concerning escheators;"(e) Code, App and an act passed in the year 1785, entitled, "an act to exNo. V. (69.) (a) 1784, c. 53. (b) 1785, c. 55. (c)May, 1779, tend the operation of an act, entitled, "an act concerning (d) October, escheators" to the several counties in the Northern Neck."(ƒ) 1782, c. 33. 179. C. Rev. Code, p. 126. (f) 1785, Ch. Rev. p. 11. They agreed that the lands in the declaration mentioned had not been escheated and seised into the hands of the Commonwealth pursuant to the two acts of Assembly last mentioned, or either of them; and that no inquest of office of escheat had been taken of and concerning the said lands. 53. 2 Rev. Code, App. No. V. (70.) (g) October, 1782, c. 8. s. 24. Ch. Rev. p. 176. 12. They agreed in hæc verba, the 24th section of the act passed in the year 1782, entitled, "an act to amend and reduce the several acts of Assembly, for ascertaining certain taxes and duties, and for establishing a permanent re'into one act."(g) venue, 13. They agreed that the lessor of the plaintiff is a citizen of Virginia, and always has been, and that he entered into the lands contained in his grant or patent aforesaid, in pursuance thereof, and was possessed thereof prior to this suit. 14. They agreed the lease, entry and ouster in the declaration mentioned; and, if, upon the whole matter, the law be for the plaintiff, that judgment be rendered for him for his term yet to come in the lands in the declaration mentioned, and one penny damage; otherwise, that judgment be rendered for the defendant. The District Court, upon this case agreed, gave judgment for the defendant; whereupon the plaintiff appealed; and, Denny Fairfax having afterwards departed this life, the appeal was revived against Philip Martin, his heir at law and devisee. This cause was argued in May, 1796, before Judges LYONS, CARRINGTON, FLEMING and ROANE, and reargued on Wednesday, October 25, 1809, by Williams and Wickham, for the appellant, and Call, for the appellee, before Judges FLEMING and ROANE; (Judge TUCKER not sitting in the cause, through motives of delicacy, being nearly related to a person interested;) but, as the Court went so fully into the subject in giving their opinions, it is thought proper to omit the arguments at the bar. Monday, April 23, 1810. The Judges pronounced their opinions. Judge ROANE. This was an ejectment brought by the appellant against Denny Fairfax, under whom the appellee claims, in the District Court of Winchester. At the trial, the parties agreed a case in lieu of a special verdict. That case agrees, inter alia, various acts of Assembly respecting the territory of the Northern Neck, as is therein more particularly stated; the treaty of peace of 1783, between the United States and the King of Great Britain; the act of 1784, "respecting future confiscations;" that Lord Fairfax died, a citizen of this Commonwealth, in December, 1781, having devised his lands in the Northern Neck to Denny Fairfax, who was born in England in the year 1750, and has never become a citizen of Virginia, or of any of the United States; that the land in controversy was a part of the lands in that territory called and described by Lord Fairfax as waste and ungranted land; that the appellant obtained a grant therefor, from the Commonwealth of Virginia, on the 30th of April, 1789, entered, and was possessed in pursuance thereof until ejected; and that no inquisition of escheat or forfeiture was ever found APRIL, 1810. Hunter V. Fairfax's |