
    OWINGS v. NORWOOD’S LESSEE.
    In an action of ejectment between two citizens of Maryland, fora tract of land in Maryland, if the defendant set up an outstanding title in a British subject which he contends is protected by the treaty» and therefore the title is of the plaintiff; and' the ' highest state court in Maryland decides against the title thus set up> it is not-a case in which ' a writ of error can lie to the supíneme court of the United States.
    It is not “a case arising under a treaty ”‘ The judiciary act must be restrained by the constitution of the United States.
    ERROR to the court of appeals of Maryland, being the highest court of. law and equity in that state, in an action of ejectment brought by the defendant against the plaintiff in error, both parties being citizens of Maryland, for a tract of land in Baltimore county, called “ The Discovery,” being part of atract of land called Brown’s Adventure, originally patented for 1,000 acres to Thomas Brown, .in the year. 1695, who conveyed to John Gadsby, who conveyed to Aaron Rawlins in 1703, who mortgaged in fee to Jonathan Scarth, a London merchant, by deed of bargain and sale, in ,1706, with a proviso to bé void upon payment of 800/. sterling, with interest, on the 13th of May, Í1709. Scarth and his heirs were always Britishsubjects resident.in England, and never w ire in Maryland; but Scarth was charged with, the quit-rents, in the Lord Proprietor’s debt-books, up to the time of .th'e revolution. Rawlins, however, by his will, in 1741, devised the'land specificálly to some of his children, without taking any notice of the mortgage. In 1732, Littleton Waters attached, and obtained judgment of condemnation against the land, for a debt due to him from Scarth, but never took put any execution upon the judgment; and by c[eed of. lease and release assigned all his right in the land to the Baltimore company, under whom the plaintiff in error claims.
    In October, 1794, Norwood obtained an escheat warraut to affect the tract called Brown’s Adventure,, upon suggestion of -a defect of heirs of Brown, .the original patentee. ,In June, 1800, he obtained a patent from the state founded upon the proceedings under that warrant, for 520' 1-2 acres, being part of Brown’s Adventure, with an addition of 26 acres of vacant land, and thereupon brought his action of ejectment against Owings. Upon the trial the original défendant, in order to show an existing title out of the plaintiff, contended that the mortgage to Scarth was protected from confiscation by the British treaty of 1794, and was still a security for the money to the representatives of Scarth, who were proved to be still living in England. “ But the court were of opinion that on the expiration of the tirrie limited in the mortgage for the payment of the money, a complete legal estate of inheritance vested in. the mortgagee liable to confiscation; and was vested in the state by virtue'of the act of confiscation of Octobei session,. 1780, c. 45- and the act of the same session, (c. 49.) (to. appoint commissioners,) subject to the right of redemption in the mortgagor and-his heirs, and that the. British treaty cannot operate to affect the plaintiff’s right to recover in this ejectment.”
    The verdict and judgment of the general court being affirmed, in the court of appeals of Maryland, and being against the right claimed under the treaty, O-wings sued out his writ of error under the provisions of the 25th section of the judicary act, voi. 1. p. 63. wh'ich enacts, that a finaf judgment in the ’ highest .court ,of a state, in a suit “ where is drawn iij question the construction of any clause of a treaty, and the decision is against the right claimed under such clause of the treaty, may be re-examined and reversed or affirmed in the supreme" court of the. United States.”
    Harper, for the plaintiff in error.
    The question in this case is, whether Scarth’s interest in the land was protected' by the treaty of peace with'Great Britain. Byfhé 5th article, of tha treaty “ it is agreed that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights.” The case, of Higginson and Mein, decided by this court, (ante, vol. 4. p. 415.) was, in substance, the same as this. In both, the time of payment had passed before the confiscation; and the legal estate vas }rt a British subject; The court in that case de* ...ortgage. cided that the confiscation did not destroy the liea, which the British creditor had in.the land under the
    Livingston,, J. Could the'mortgagor, sixty or seventy- years after the time of payment, maintain á bill to redeem ?
    
      Harper-.- The mortgagee never was in possession of the latid; the lapse of time, therefore, would rather opératelas a bar to foreclosure than redemption.
    Ridgely, contra.
    By the act of assembly of Maryland, passed at October session, 1780, c. 45, and c. 49. all the property in that state belonging to British subjects, except debts, was confiscated and vested in ■ the 'state, • without inquest of office, or entry, !or any other act to be done. The statute operated a complete change of property and possession.
    This was not at that time a debtdue to Scarth. Nearly a century had elapsed since the mortgage was forfeited. Theré was no. covenant,, in the mortgage for payment of the money; no bond taken, or other evidence of a- debt. Rawlins never took any measures to redeem, but abandoned the pledge, as an absolute sale. It is a general- principle in equity that the mortgagor shall not redeem if the mortgagee has been in possession twenty years after forfeiture of the mortgage. It was not necessary for Scarth to file a bill to foreclose; because the right to redeem was barred by his twenty years’ possession. If Rawlins could not have redeemed in 1780, the estate, was absolute in Search, and the confiscation was complete. There is no case -in England, or Maryland, where the mortgagor has been permitted to redeem after twenty years, if no interest has been paid, or account kept between the parties. Pow, on Mart. 152. 3 P. Wms. 287. 2 Atk. 496. 2 Vern. 
      418. 3 Bac. Abr. 655 1 P. Wms. 272. 15 Vin. 467’
    
    But if Scarth’s heirs might avail themselves of the treaty, it is not competent for a third person to .Set it up. Or if it is, it will not give this court •jurisdiction.
    
      Johnson^. Attorney-Generalof Maryland,, on the same side
    If the judgment below be' not against a right claimed under the treaty, if it be not a case arising . under the treaty, this court has no jurisdiction.
    Iri this case Owings claims no right, under the treaty. Scarth’s right, whatever it may. be, is not affected by the decision of this case. It is he only, who could claim the benefit of the treaty. But he is not a party in the suit. It is, therefore, not a case arising under the treaty,
    Marshall, Ch. J.. There are only two points in this case.
    1. Whether Scarth had such ;an interest as was protected by the treaty ; and»
    2. Whether the- present case be a case.-arising under a treaty,, within the meaning, of the constitution.
    This court has no doubt upon either point;
    The interest by debt intended to be protected by the treaty, must be an interest holden as a security for money at the time of the treaty; and the debt must still remain due.
    The 125th section of the judiciary act must be restrained by the constitution, the words of which are, “ all cases arising under treaties.” The plaintiff in error does not contend that his right grows out pf the. treaty, Whether .lt is an, obstacle to 'thé plaintiff’s recovery is a question exclusively for the decir si¿n of the courts of Maryland.
    Harper, on the next day, having suggested to the court that he, understood.the opinion to be that this court had no jurisdiction to révise the decisions of the state courts, in cases where the construction of a treaty was drawn in question iñeldentiilly, and where' the party himself did not claim title under a treaty, was about to make some further observations on those points, when
    Marshall, Ch. J. observed, .that Mr. Harper - had misunderstood the opinion of the court, in that •réspect. It was not that this court had not jurist diction if the treaty were draWn in Question incidentally.
    
    The reason for inserting that clause in the constitution was, that. all persons who hav® teal claims under a treaty should have their ca’pses decided by the national tribunals. It was to afvoid the- apprer hension as well as the danger of state prejudices.' The words of the constitution aijij, “ cases arising ■Under treaties'’ . Each treaty stipulates something respecting the citizens of the .two nations, and gives them rights. Whenever a right gro' s out of, pr is. protected by, a treaty, it is sanctioned against all -the laws and judicial decisions of thé states; and whoever may haVfe this right, it is to be protected. But if the person’s title is not affected^.by the . treaty, if he claims nothing under a treaty,/his title cannot be protected by the treaty. - If Scarth or his heirs' had. claifned, it would have been a case arising under . a treaty. But neither the title1 of Scarth, pór of any person claiming under him, can(be áffect- , ed by the decision,of this cause.
    
      Harper. . The Opinion is more limited thajv.T apprehended. But in this case the land is claimed as confiscated, and the question is, whether the plaintiff’s title, by confiscation, is good under the treaty. The defendant has a good title against every body who cannot sfyow a better.: He has a right to protect himself* by showing that the plaintiff has no; title. In order to do this', he insists that the title of the plaintiff is inconsistent with the treaty. He has a right to set Úp the treaty in ^opposition to the confiscating act of Maryland.
    Martin, on the same side.
    The reason pf the clause in the constitution was, .that there might be uniformity of decision upon all questions arising upon the construction of the constitution, and laws and treaties of the United States. In every case, the question concerning a «treaty must come on incidentally. The intention was, that wherever a state court should decide against a claim, set up under the construction of a treaty, such decision should be examinable in this court.
    This was the cotemporaneous exposition given to the constitutibn by the first congress, convened under that constitution, and which was composed of a great number of the leading' members of the convention by which the constitution was framed; and who must have well known what was the intention of that body in adopting that article.
    The right of the plaintiff to recover in this suit, and the right of the defendant to retain the possession as against this plaintiff, depend upon*the. treaty..
    The property having been once granted, the state could not again acquire the title but by escheat or confiscation. The court below decided, that it was' not a case of escheat, because the heirs of Scarth' were living. Whether the property was confiscated within, the meaning of the treaty,. is therefore the only ■ remaining question, upon the merits of .thp case. That question, however, is not before this court, until this court shall decide whether they are competent to consider it in this case. We consider the judiciary act as a correct exposition of the constitution in this"'respect, and that-this is clearly á case within the provisions of the 25th section of that act.
   This argument produced no alteration, in the opinion of the court; and the

Writ of error was dismissed. 
      
      . As this cause occupied a.considerable portion of the time and talents of the courts and bar of Maryland, and as it decided several important points in that Btate, it redeemed not improper to give a short abstract of the case as it -appears in the bills of exception. '
      ‘Upon the trial, the defendant Owings took 10 bills of exception.
      The Ist.bill of exceptions stated that the plaintiff offered in evidence a patént from the. lord proprietor of Maryland to Thomas Brown, .láted- November 10, 1695, for a tract of land called Brown’s Adventure, containing 1,000 acres. Also a patent from the state of Maryland to Edward Norwood, the original' plaintiff in this action, dated 25th June, 1800, fora tract of land' called “ The Discovery^’’ containing 520 1-2 acres, included' within the lines of Brown’s Adventure The defendant offered evidence that the heirs of Brown, the original patentee, were still living in Maryland. The" defendant offered- in evidence a deed from Brown to Gadsby, dated May 2, 1700, on which was an endorsement dated May 4» 1699, purporting to be a receipt for the alienation fine due to the lord proprietor. And the following “ Memorandum : That the date of this was originally according to the date of the above receipt, but aliened by .consent of the 'provincial, court and parties, to bring it within the act of assembly.
      “W. Taylard.”
      Whereupon the defendant prayed, the court to instruct the,jury that if they were of opinion that the endorsements were made at the request of Gadsby the grantee, and with his privity and consent, and that the deed with the endorsements was recorded for bis benefit, and with his assent, then the endorsements are competent to be read in evidence to support the facts therein contained against the title ofGadsby to the lands in the deed mentioned. But the court was of opinion that the memorandum .of Tayíard “ was not evidence, being an act done by the said W.' Taylard nnihoiit authority, and- that the- said deed was valid and operative in law to transfer the said land to the said Gadsby.”
      The 2d bill of exceptions states that, in addition to the above evidence, the plaintiff offered in'evidence a deed from Gadsby to Barker, 'for 130 acres, part of- Brow.n’s Adventure, dated 10th of July, 1701. Also a deed from Gadsby to Aaron Rawlins of the residue of Brown’s Adventure, dated 2d of October 1703. Also a deed of mortgage in .fee from Rawlins to Jonathan Scarth, ■ dated the 13th of May, 1706.- lie also offered evidence that Barker and Hearth died before 1795, without heirs; Also an escheat warrant to the plaintiff', dated 28th (if October, 1795, and a certificate of resurvey, and a patent thereupon'to the plain--' ' 
        tiff, dated 25th of June, 1800 The plaintiff also offered evidence, that the lands are truly located on the plats as directed by the plaintiff. The defendant offered evidence that the heirs of Brown were still living in Maryland ; that Scarth’s heirs are still living in England, and that he and his heirs were always British subjects, and always resided in England
      The court'had directed the jury that if the heirs of Scarth were living in England at the passage of the acts of October session, 1780, c. 45 c. 49. and c. 51. the warrant of escheat which issued to the plaintiff, issued without authority of law, but that a patent which issued on such a warrant came within the provision óf the act of November session, 1781, c. 20 s- 8. whereupon the defendant offered in evidence the valuation of the land so escheated by the plaintiff, and the sum by him paid into the treasury for the said-lauds on the -Ziih of December, 1799, and that the sum so paid, was only two thirds bf the appraised value of the said lands so escheated, and prayed the direction of the court, that if the jury should be of opinion that the plaintiff had paid only two thirds of the appraised value, he could not entitle himself to the benefit of the warranty contained in the act of November, 1781, e. 20. S'. 8 “ But the court were of opinion, that if the jury should find the facts as stated, the said patent was good, valid and operative in law to pass the said land to the said Edward Norwood and his heirs, and so directed the jury*" notwithstanding the said Edward Norwood had not paid more than two thirds of the appraised value of Ihe said land. Tlie court considering the ease of the said Edward Norwood as coming fully within the provision of the 8th sect of the got of November session, 178!, c. 20. and that the two thirds of the Value of the said land was as much as the said Edward Norwood was liable to pay ; to which last opinion, and to so much of the former opinion as declares the said patent to come within the provisions of the act of November, 1781, c. 20. § 8 the defendant excepted.”
      The 3d bill of executions, in «addition to the foregoing evidence, stated, that the defendant offered evidence ofa judgment of condemnation of these lands upon an attachment from the provincial court in 1732, lor a debt of 397/ 9s- Orf. sterling, due from Hearth to one Little-ton Waters. The plaintiff offered in evidence duplicate writs of attachment to other counties issued by Waters for the same debt, upon which sundry sums of money were attached and condemned in the hands qf garnishees, amounting altogether to 226l. So. -id. sterling.
      
        To show tbkt the lands attached by Waters was the- 386 .acres located on ,the plats as being in the possession ot the Baltimore company, the plaintiff bead in evidence the .lord proprietor’s old rent-roll, stating ’870 acres to We in possession of Rawlins, and 1 JO in the possession of - Joha Brisker. And the last rent-roll stating4l9aeres to be in possession of Search, and 385 in the possession<of Charles Carroll & Co.; and the lord proprietor’s debt-book for the year 1754, (being the oldest book óf that kind remaining,) which charges the Baltimore company with the quit-rents of 386 aeres and no more, nod Scarth with 419; 'which charges were continued annually until the revolution And the defendant thereupon prayed the opinion of the court, that by virtue of the said judgment and attachment and condemnation by him given in evidence, a legal estate was vested in the said Littleton Waters in the said tract of land called Brown’s Adventure. But the court were of opinion, and so directed the jury, that the said Littleton Waters did not acquire a legal estafe in the said land by virtue of the said judgment, attachment' and condemnation.
      The 4th bill of. exceptions stated the same facts, and further that the defendant read the act of assembly passed at November session, 1797,.c. 119. andprayed the opinion of the court,.that by virtue of that act the right of the stale was so far vested-in the ■ persons possessing the land called Brown’s Ad venture-under tile condemnation' afiiresaid, that the plaintiff could not in virtue of ids said warrant, certificate and patent have any rifehtor title to' the Baid land; or, if any, then no more than the proportion or compensation to which a discoverer of confiscated.propertyis entitled. But the court \yere ot' opinion that the right of the plaintiff to Brown’s Adventure-attached upon his obtaining the warrant of escheat, and- that his right was saved and protected by *he proviso in the 2d section of the said act of November, 1797, c. 119. And that the grant transferred to him the interest the state had in the land called “ The Discover^’ from the lime of his obtention of his said warrant of escheat.
      The' 5th bill of exceptions states the same facts, whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if the warrant of escheat which issued in this case, issued withoul’auihority of law,, then the warranty contained in the act of November, 1781, c. 20. § 8 did not operate to give title to the plaintiff, arid that there .cart be no relation to a warrant which issues without authority of lav/, or to a "certificate made in pursuance of suchjyarrant.
      But the court were of opinion, that the act of 1781, c. 20. § 8. did secure to the plaintiff" the said land so by him escheated on his paying two -third‘s of the value of the said-land,, being what the plaintiff was liable to pay for the same as confiscated British property; and that the grafit obtained by the plaintiff did operate to pass tho land to him by relation from the date of the said warrant.
      The 6th bill of exceptions also stated the same facts, and that the defendant thereupon prayed the court to direct the jury that if tlu; said tract of land called Brown’s Adventure belonged to a British subject at the time of passing the act for confiscating British property in tire state of Maryland, anil if no actual possession had been taken thereof by the said state or its agents, and no sale or disposition, made thereof by the state to any person at any time befor^ the treaty between the United States and Great Britain dated the 19 th of November, 1794, took .effect, the plaintiff could make no title,thereto by his said warrant, certificate and patent.
      But the court refused to give that direction to thé jury, being of opinion, that the state.of Maryland, by their commissioners, was in . possession- of all British property within the limit's of the said state, underand by virtue f the act of confiscation, October,‘1780, c. 45. and the act of the same session, c. 49-. to appoint commissioners, hte. And that the possession of the said land was in the state of Maryland at the time the plaintiff obtained his escheat 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, the United States and Great Britain.
      The 7th bill of exceptions, in addition to'the facts before mentioned, stated, that the defendant offered evidence that the heirs of Rawlins were still living in Maryland. That Rawlins, in the year 1741, made his will and devised^ Brown’s Adventure by name to some of hiq children. That'the heirs of Littleton Waters are still living in Maryland.That the Baltimore company, under whom the defendant elaims, have been for fifty years past in the actual.possession and user of the whole land called Brown’s'Adventure, by .clearing and cutting the woof! off the said land for their iron works, and claiming the said landj and that there has been no actual or mixed possession of any part of the ¿aid land by Scarth, or by any person claiminglmder him, or-by any person claiming adversely to the Baltimore company. Whereupon the defendant prayed.the court to direct the jury, that if they find the faets stated by the defendant to be true, and that no payment of principal or interest due on the said mortgage, or acknowjdgément of the said'mortgage,-was at any time paid, made or. done, on or after the 13th. of May, 1709, the jury may and ought to presume tits said mortgage satisfied before the year 1780, and that the plaintiff is not entitled to recover. But the court were of op’nion that the facts stated in the above case will not warrant the jury in presuming the,.said mortgage was satisfied before the year 1780, and refused to give the direction prayed.'
      The Slh bill of exceptions states the same facts, and that the defendí ant further prayed ttie court to direct the jury, that if the facts are found, true as stated by the defendant, the act of confiscation of pctoljer sesf sion, 1780,. c. 45. and c. 491 vested no beneficial interest in the state of Maryland in the.,lands in the mortgage from -Rawlins to "Scarth, but that the same, if it vested in the^tate under the act of confiscation, was liabje to the equity of redemption in the heirs of Rawlins, the mortgagin', and that by operation of the British treaty, so far as the mortgagee could claim an interest in the said mortgaged lands, the same was saved from confiscation by the said treaty, and, consequently, the lessor of the plaintiff is not entitlecTto recover.
      But the court were of opinion, that on the expiration of the time limited, in the mortgage for the payment of the money, a complete legal estate-of inheritance'vested in the mortgagee liable to confiscation, and was vested in the state in virtue of the act of confiscation of October session, 1780, c. 45. and the act of the same session, c. 49. to appoint commissioners, subject to the right of redemption m the mortgagor and his heirs, and that the British'treaty cannot operate to affect the plaintiff’s right to recover in this ejectment, and refused to give the direction prayed.
      The 9th bill of exceptions, in addition to the same facts, states, that the defendant offered in evidence a lease and release from Littleton Waters to Benjamin Tasker and others, dated June 20, and 21, 1738, of so much of Brown’s Adventure as, Recording to a valuation upon oath returned to the provincial court, would amount to 145/. Is. 5d. sterling, and thereupon prayed the court to instruct the jury, that if they find the facts as slated by the defendant, the deeds of lease and release from Waters to Tasker and others conveyed a legal title in the lands therein mentioned; and that if a legal title did not pass, then the jury may and ought to presume-a title in the said Tasker and others to the whole of an undivided 386 acres of land, being an undivided part of the 870 acres of land mortgaged to Jonathan Scarth, called Brown's Adventure. But the court refuscd.to give the direction prayed.
      The 10th bill of exceptions states, that upon the same facts the defendant prayed the court to direct the jury that as to all that part of Brown’s Adventure contained in the deed from Waters to Tasker and others, under whom the defendant claims, the patent granted to the plaintiff does no.t give him a title thereto, or enable him to recovetythe jame, which, direction the court refused to give.
     