APRIL, 1810. Hunter V. Devisee. of the Counties within the Northern Neck" (which entries were consequently authorized by the act) "shall be held deemed and taken as good and valid in law, as those heretofore made under the direction of the said Thomas Lord Fairfax's Fairfax, until some mode shall be taken up and adopted by the General Assembly, concerning the territory of the Northern Neck." As there could be no conceivable motive with the Legislature to abstain from taking possession of those vacant lands, and granting them out, thereby to settle the country while it was taking possession of the quit rents and granted lands thereof, the authorizing entries to be made therefor, is as strong a mode as they could possibly have adopted to declare that they then and there took possession of the same. They took possession thereof, and made a temporary and provisional arrangement for granting it away, declaring, at the same time, their intention to adopt another and more definitive mode at a future time. That mode was adopted by the act of 1785, c.67.; in which, although the executive were directed to take possession of the land-papers of the Northern Neck, they were not directed to take possession of the vacant lands thereof: such possession had been taken by the act of 1782, and it would have been absurd to have directed it in any other way than by authori zing entries therefor, as the act of 1782 had done, and which amounted, ex vi termini, as is before said, to a declaration that the possession of such lands existed in the Commonwealth. On a comparison of this permanent act of 1785, with the temporary one of 1782 aforesaid, it will be found that the former is not only as deficient as the latter in providing any mode of taking posesssion of the territory other than that of authorizing entries therefor, and that in a manner not more strong than that contained in the act of 1782, but has also expressly recognised the entries authorized by that act, and provided for carrying the same into grant. When, therefore, the appellees admit the title of the Commonwealth to the territory in APRIL, 1810. Hunter V. Fairfax's question to have been complete, under the act of 1785, but for the alleged bar of the treaty of peace, they must also admit the same in relation to the act of 1782, which was prior to the treaty. By both those acts, the whole of that vacant territory was taken possession of by the Commonwealth; and, in relation thereto, the last act was a mere work of supererogation: in fact, this new and ridiculous idea of the necessity of ordinary and particular inquests of office, as applying to the case in question, or of any other symbol of investiture, than that most notorious one of all, (an act of the Legislature,) had not then occurred to the mind of the General Assembly: in relation to the Commonwealth, the mere assumption of the lands by law was sufficient, though, as to the grantees of the Commonwealth, other acts were necessary to complete their title: it is, however, enough to avoid the bar presented by the treaty that the title (including the possession) of the lands was then completely in the Commonwealth. While this general inquisition of office, by the Legislature, (if I may so express myself,) was peculiarly adapted to the case of the estate of an individual, which pervaded a great number of the Counties of the Commonwealth, the power of the Legislature to substitute an act for an ordinary inquisition cannot be doubted. It is admitted that an act of Parliament in the reign of Philip and Mary, declaring the property of Sir Thomas Wyatt to be vested and in possession of the King, without any inquest of office, was va(a) 2 Tuck. lid. (a) That case differs from the case at bar only in degree: and it cannot possibly make a difference that the inquest in that case is expressly waived by the act, whereas in the case before us, it is waived by a strong and necessary implication only: the words are wanting, but are more than supplied by the actual measures taken by the Legislature, eodem flatu, to grant out the lands to others. Bl. p. 60. note C. Upon this point of the competency of a general legislative act to supply the place of particular inquisitions of APRIL, 1810. Hunter V. Devisee. (a) 2 H. &M. 344. office, I consider the case of Kinney v. Beverley(a) as a direct and pointed authority. In that case, the title of the appellant was reprobated, only on the ground that the lands alleged to be vested in the Commonwealth, by reason of Fairfax's non-pay ment of taxes, and which were regranted to him, had not been listed by a County Commissioner. This was decidedly the ground of the decision of the Court in that case, as appears by the report thereof. Although the lands in dispute in that case stood upon a common foundation with those before us, both as to the want of particular inquisitions of office, and also as to the non-existence of any other mode of taking possession thereof by the Commonwealth, except by authorizing grants to others, the above was the only ground on which the pretensions of the appellant failed: and this, although the necessity of particular inquisitions, as applying to every case, was suggested by counsel, and much laboured by one of the Judges of the Court. That case is much stronger in this respect than the case before us: for there the lands of thousands of individuals, who were not named in the act, and whose lands lay sparsim throughout the Commonwealth, were liable to be affected, whereas, in the case before us, the lands of one individual (by name) were taken into the hands of the Commonwealth. In short, if this objection, for the want of a more particular inquisition, exists in this case, it equally exists in relation to the act of 1785, (considered as unaffected by the treaty,) and would go to overthrow every title acquired under it! I am thus of opinion that the treaty of peace applies not to this case, nor to arrest the operation of the laws of alienage in the several states; and that, even if it does, the title of the Commonwealth to the land in question having been perfected by a seisin under the act of 1782, or, in other words, the confiscation being complete, that treaty had nothing left whereupon to operate. This view of the subject makes it unnecessary me to say much in relation to the act of compromise (b) Sess. Acts, of 1796.(b) By the compromise contained in that c. 14. APRIL, 1810. Hunter V. Fairfax's act, the purchasers under Denny Fairfax, in considera- On every ground, therefore, I am of opinion, that the judgment of the District Court should be reversed, and entered for the appellant. Judge FLEMING. The counsel for the appellant, who was plaintiff in the Court below, has made three points, in support of his cause; 1. That Denny Fairfax was, at the time of the decease of Lord Fairfax, and ever after, an alien, incapable of holding lands within this Commonwealth. 2. That the several acts of Assembly respecting the acquiring title to waste and unappropriated lands within the Northern Neck, were a sufficient inquest of office to authorize the granting the lands to the appellant. And, 3. That the act of compromise between the purchasers of Denny Fairfax and the Commonwealth, vested the lands in Hunter, even if his title was not complete prior thereto. With respect to the first point, the counsel seems to admit (by not denying it) the right of Lord Fairfax to devise the land in question, which renders an inquiry into the nature of his title unnecessary: we are then to consider whether Denny Martin was incapable of holding the lands so devised to him, lying within this Commonwealth? It has been settled in the case of Marshall v. Conrad, (and I believe it is not, or ought not, to be controverted, at this day,) that an alien may take land within the Commonwealth by purchase, as well by devise as by grant or other conveyance, and hold the same until something further be done, to devest him of his right, to wit, office found; which must be done before any title can vest in the Commonwealth during the life of the devisee. APRIL, 1810. Hunter V. Devisee. 106. The case agreed between the parties, in the nature of a special verdict, finds, among others, two acts of Assembly passed in the year 1785, the first entitled, "An act concerning escheators." (It should have been in the year 1779 instead of 1785.)(a) And the other extending the ope- (a)May, 1779, ration of the former act to the several Counties in the c. 45. Ch. Rev. Northern Neck: and then they agree that the lands in the declaration mentioned have 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 hath been of and concerning the said lands. And this brings me to consider the second position of Mr. Williams, that the several acts of Assembly respecting the acquiring title to waste and unappropriated lands within the Northern Neck, were a sufficient inquest of office to authorize the granting the lands to the appellant; and both of the counsel argued that the Govern |