
    *Marshall v. Conrad.
    [October, 1805.]
    Rents — Case at Bar. — The rents of five shillings sterling', reserved, by lord Fairfax, upon lots in the town of Winchester, were not quit-rents, but rents charge.
    Same — Quit-Rents—To Whom Payable. — For quit rents in fee. require composition, and must be payable to the lord In his seignoral character.
    Same -Same. ■Therefore, no fee rents, but the shilling for every 50 acres of waste land reserved in grants from the crown, and the one shilling sterling reserved for each 50 acres granted by lord Fairfax, were quit-rents.
    Northern Neck---Quit-Rents — Statute Abolishing.— None of the rents in the Northern Neck, were destroyed by any of the acts of assembly ior abolishing quit-rents, passed during the revolutionary war, except those of one shilling sterling for every 50 acres granted by the proprietor.
    Act Establishing Town of Winchester — Socage Tenure. —The act of 1752. for establishing the town of Winchester. broke the seignory as to lands lying within the town, and turned them into socage tenures.
    Aliens — Capacity to Take by Grant or Devise. — An alien, whether friend or enemy, may take by grant, or devise ; and is capable of conveying before office found.
    Devises — Transfer of Possession — Statute.—The statute transfers the possession to the devisee, without any act to be done :
    Same — Same—Same—Entry. And, therefore. Denny Martin Fairfax took the lands devised to him by lord Fairfax during the war. arid was seized thereof by force of the devise, without entry.
    Treaty of Peace — Effect upon Capacity of British Subjects to Gold Lands Previously Acquired — Qua;re.— Whether the treaty of peace did not restore the capacity of British subjects to hold the lands which they had acquired anterior to the date of the treaty, where no office had been found ?
    British Subjects--Capacity to Gold Lands- Effect of Treaty of London. — Jiut if not, the treaty of London in 1794, secured their rights to the real estates which they held at that time.
    Lands Ceded by State -Act of Compromise of 1706.— The act ol compromise in 1796, secured to the purchasers from Denny Martin Fairfax, all the lands thereby ceded to them by the state of Virginia.
    Deed to Lands in Northern Neck — Effect—Case at Bar. —The deed, from Denny Martin Fairfax to James M. Marshall, conveyed all the lands and rents belonging to tbe former in the Northern Neck, except the tracts expressly reserved and the quit-rents
    Same — Same—Refusal to Pay Rents — Ejectment -Case at Bar. — Therefore, the rents of live shillings sterling, upon lots in the town oí Winchester, passed by that deed; and the grantee, after demanding the arrearages, and refusal by the tenant to pay, might maintain ejectment to recover the lot for the forfeiture on account of the non-payment, if there was no distress on the premises whereof the rent could be levied.
    Same —Same—Same—Same—Same.—Because the remedy followed the assignment of the rent; for the statute of the 32 Hen. 8, cap. 34, destroyed the distinction of the common law between the grant- or’s right to distrain, and to re-enter, in the case of fee rents ; which are within the equity of the statute, notwithstanding the words extend to leases for years, and estates for life only.
    In ejectment, for a tot (No. 39) of half an acre of land situate in the town of Winchester, in the county of Frederick, ^brought by the appellant against the appellee, the parties agreed a case, which was afterwards set aside by consent, and another substituted in its room, as follows:
    1. That the act of assembly, (which is found at large) entitled, “an act for confirming and better securing the titles to land in the Northern Neck held under the right honourable Thomas lord Fairfax, baron of Cameron in that part of Great Britain called Scotland,” truly recites the several grants and charters therein mentioned ; and that all the estates, rights and authorities thereby granted to the predecessors and ancestors of the late Thomas lord Fairfax, of and concerning the Northern Neck, were lawfully vested'in him, his heirs and assigns, previous to the year 1756, and remained so vested and in possession until his death.
    2. That the said act of assembly should operate as if the grants and charters therein recited were filed as exhibits in the cause.
    3. That, in the year 1748, the act of assembly, entitled, “an act for confirming the grants made by his majesty within the bounds of the Northern Neck, as they are now established,” was passed, and in these words, &c.
    4. That lord Fairfax kept, at his own expense, an office within the Northern Neck, for granting what he described as the waste and ungranted lands therein, upon certain terms and rules established by him, and published: And that such of the said lands as were granted and conveyed by him in fee, were granted on the payment of a composition of thirteen shillings and four pence per hundred acres, with a reservation of an annual rent of one shilling sterling for every fifty acres of the same, and so for a greater or lesser quantity, as expressed in grants from him as proprietor; one of which is set forth in words, and the consideration is stated to be the composition and rents therein reserved: the grant itself being to the grantee, his heirs and assigns, excepting royal mines, and a full third part of all lead, copper, tin, coals, iron mines, and iron ore. “Yielding and paying to lord Fairfax, his heirs and assigns, proprietors of the ^'Northern Neck, yearly, and every year, on the feast of St. Michael, the archangel, the fee rent of one shilling sterling money for every fifty acres of land granted, and so propor-tionably for a greater or lesser quantity,” with a proviso, that if the rent should be arrear for two years, and should be lawfully demanded, that lord Fairfax, his heirs and assigns, proprietors as aforesaid, might re-enter and'hold the land, as if the grant had never passed.
    5. That the grants (except as to those for lots in towns) were all alike, and transcribed into books kept in the said office, which was open, for the purposes aforesaid, from the year 1748, until the death of lord Fair-fax, in the year 1781; and, during all that period, he, as proprietor, exercised the right sometimes of granting in fee simple, and sometimes of leasing for life or years, the waste lands, upon the rents, conditions and reservations contained in the grants, the rents being paid to him as they annually accrued.
    6. That lord Fairfax was a citizen of the state of Virginia.
    7. That, previous to the year 1776, it was the custom of the government of Virginia to grant lands lying without the Northern Neck, on payment, by the grantee, of a composition of thirteen shillings and four pence per hundred acres, with a reservation of one shilling sterling for every fifty acres, and so for a greater or lesser quantity, as expressed in grants from the crownone of which is set forth in words, and states the consideration for it to be the composition and rents; and that the land shall be held by the grantee, his heirs and assigns, of the king, his heirs and successors, as of his manor of Bast Greenwich, in the county of Kent, in free and common socage, and not in capite, or by knight’s service, yielding and paying to the king, his heirs and successors, for every fifty acres of land, and so proportionably for a lesser or greater quantity, the fee rent of . one shilling yearly, to be paid upon the feast of St. Michael, the archangel, and also cultivating and improving three acres, part of every fifty, within three years, with a proviso, that if three years rent should be arrear, or the grantee should not cultivate *'and improve, the estate granted should be determined, and the crown at liberty to grant to any other person.
    8. That the said one shilling, for every fifty acres granted by the crown, was, through all that part of Virginia which lies without the Northern Neck, denominated a quit-rent, until it was abolished by act of assembly in 1777.
    9. That the said one shilling sterling, for every fifty acres granted by lord Fairfax, was likewise denominated a quit-rent, throughout the Northern Neck of Virginia.
    10. That the old town of Winchester was surveyed and laid off for a town in the year 1752, by an act of assembly, which is found in words; and that lord Fairfax received ;£10 sterling for each lot, subject to the covenants and reservations expressed in the grants, one of which is set forth at large, and declares that, for good causes, and in consideration of the yearly rents and covenants therein after reserved and expressed, there was granted to the grantee, his heirs and assigns, forever, one lot or half acre of land situate in an addition to the town of Winchester, upon condition of building a house on it, and paying every year, on the feast of St. Michael, the archangel, the fee rent of five shillings sterling to lord Fairfax, “his heirs, &c.” with a proviso, that if the rent should be arrear for thirty days, and, being lawfully demanded, sufficient property should not be founded on the premises whereof it might be levied, the lot should be forfeited and vested in lord Fairfax, his “heirs and assigns,” as if the grant had never passed.
    11. 'That, upon the 15th of May, 1753, lord Fairfax granted to James Lemon, his heirs and assigns, forever, by grant in the form last mentioned, lot Ño. 29, containing half an acre, being theretofore waste and ungranted, and situate in the said town ; also lot No. 28, theretofore likewise waste and ungranted, and situate in the county of Frederick, contiguous to the town, being part of a tract of 439 acres given by lord Fairfax as a common for the use of the town, upon condition of building a house upon the first, and of not building upon the latter, yielding and paying “to me, my heirs, *&c. the rent or sum of five shillings yearly for the aforesaid two lotswith a proviso, that if the rent should be arrear for thirty days, and no sufficient distress be found upon the premises whereof the same might be levied, that the lots should become forfeited and vested again “in me, my heirs, &c.”
    12. That the said rent of five shillings sterling was sometimes called a ground rent, and sometimes a quit-rent by the collectors for lord Fairfax; and generally a quit-rent by the inhabitants of Winchester.
    13. That lord Fairfax, being seized of the Northern Neck, devised all his interest in and issuing out of the lands in that district, including those in the said town of Winchester, to Denny Martin and" his heirs forever, upon condition of his taking the name and arms of Fairfax; which condition he had complied with, and had become lawfully seized and possessed of the estate devised.
    14. That the said Denny Martin Fairfax is a British subject, born prior to the year 1776, to wit, in the year 1726.
    15. That the definitive treaty of peace between the United States and Great Britain is in these words, &c.
    16. That lord Fairfax laid off into lots a certain tract of land situate in the Northern Neck, and called the South Branch manor, and granted leases of three lives, renewable forever, for the same; on which rents were reserved by him in the following form, to wit: That the grantee, his heirs and assigns should pay, 1. to lord Fairfax, his heirs and assigns, 20 shillings sterling per 100 acres on Michaelmas day in every year; 2. all taxes imposed by the general assembly of Virginia, and a fine of one year’s rent for every renewal; 3. that if the grantee should fail in payment of the rent for two years, and no distress should be found on the premises, lord Fairfax and his heirs might reenter and possess, as if the lease had never been made.
    17. That lord Fairfax also laid off into lots, another tract of land situate in the Northern Neck, and called the manor of Leeds, on which rent was reserved as follows: “Yielding *and paying to the said lord Fairfax, his heirs and assigns, for the first three years after the date hereof, the quit-rents, and one good fat turkey or pepón, and to build, &c. ; and, after the said three years are expired, the said grantee to pay yearly, during the continuance of the demise, on the 1st of May, the rent or sum of forty shillings current money, for every 100 acres, and proportionably for every greater or lesser quantity, and to deliver up possession at the end of the lease, with a stipulation in case a subtenant should be admitted, and a proviso for reentry, in case of non-payment of the rent.
    18. That the manor of Leeds, and the South Branch manor, were conveyed to Thomas Bryan Martin in the year 17 — ■, in the usual form of grants, from lord Fair-fax, with intent that he should convey the same in fee simple to lord Fairfax himself.
    19. That there is no grant from lord Fair-fax, to any person, for the lands on which the town of Winchester stands, prior to the said act of assembly for establishing the town.
    20. That the said lot No. 18, in the town of Winchester, was granted to the said Thomas Bryan Martin, in the' same form, and with the same conditions and reservations, contained in other grants for lots in the said town, and was afterwards recon-veyed by the said Martin to lord Fairfax.
    21. That there is no survey extant of the lands on which the town of Winchester stands, of a date prior to the act of assembly establishing the town, except that part of it which James Wood had previously claimed.
    22. That it was the custom of lord Fairfax, in all his conveyances, to style himself proprietor of the Northern Neck, whether such conveyances were made by him as proprietor, or not.
    23. That no inquest of office has ever been taken on the lands in the declaration mentioned, or on the interest reserved by lord Fairfax, or to issue' out of the lands in the town of Winchester, as aforesaid ; but that an act of assembly ^passed in the year 1782, and another in 1785, in these words, &c.
    24. That the interest of Denny Martin Fairfax, in all the lots and rents in the said town of Winchester has been conveyed to the appellant by deed of the 30th of August, 1797, which grants “all and every those divers tracts, pieces and parcels of land, being part and parcel of the proprietary of the Northern Neck of Virginia, and all and every the now remaining real estate and beneficial right and interest of him, the said Denny Martin Fairfax, of whatsoever nature the same may be, of, in, to, or to arise out of, or from, the same; and all or any other lands within the commonwealth of Virginia, with their and every of their rights, members, and appurtenances; save and except, nevertheless, unto the said Denny Martin Fairfax and his heirs, as not being intended to be included in the present grant and conveyance, the manor of Leeds and all and every tract, pieces or parcels of land lying within or reputed to be part or held of that manor; and all and every quit-rents reserved on grants of and for all and every part of the lands of the said Northern Neck of Virginia, now due or hereafter to grow due for the said lands and every part thereof, and all the beneficial right and interest whatsoever of him the said Denny Martin Fair-fax, of, in and to the said excepted manor lands and quit-rents and every of them, and also save and except unto the said Denny Martin Fairfax and his heirs, as not being intended to be included in this present grant and conveyance, all that and those certain tracts, pieces and parcels of land containing one hundred acres or thereabouts, and commonly called, known and described by the name of Berry’s ferry.”
    25. That the lot in the declaration mentioned, was granted by lord Fairfax to James Demon, under whom the appellee claims; and that lord Fairfax demanded and received ^10 sterling for the said grants; which is found at large and conveys lots No. 39, No. 28, upon condition of building a house on No, 39, and of not building on No. 28, but allowing it *to be kept as a common for the use of the town, “yielding and paying to me, my heirs, &c. the rent or sum of five shillings sterling money, yearly and every year for the aforesaid two lots,” with a proviso, that if the rent should be arrear for thirty days, and no distress should be found on the premises, that the lots should be forfeited, and vested again “in me, my heirs, &c.”
    26. That a compromise was entered into between the commonwealth of Virginia, and the purchasers of the estate of Denny Martin Fairfax, as set forth in an act of assembly (passed in the year 17 — ) in these words, &c. ; and that the said compromise has been completely executed, and a deed in conformity thereto duly made and recorded.
    27. That the rents reserved on the lot in the declaration mentioned, have been unpaid for 18 years; and that the appellant, in the year 1798, demanded them, on the premises, in due form of law; but the same were not paid, and that there being nothing on the land whereof distress could be made, the appellant, in like due form of law, entered on the said lot, according to the power in the deed, from lord Fairfax to the said James Demon, contained, for and on account of the forfeiture incurred for the nonpayment of the rent in the said deed reserved, and no distress found on the premises whereof the said rent could be made.
    28. That all laws relating to the premises should be considered as part of the said case agreed.
    29. That there was such lease, entry, and ouster as mentioned in the declaration ; and that judgment should be entered for the plaintiff, or defendant, according to the law, upon the said case agreed.
    The district court being of opinion, that the law, upon the case agreed, was for the appellee, gave judgment in his favour; and the appellant appealed to the court of appeals, insisting:
    1. That the rent, reserved upon the lot in the declaration mentioned, was neither a quit-rent, nor abolished by any act of assembly ; and that it, consequently, passed by the *devise to Denny Martin Fairfax, whose alienage was no impediment, as an alien might take either by grant or devise.
    2. That as no office of escheat had ever been taken prior to the date of the treaty of peace between the United States and Great Britain, the capacity of Denny Martin Fairfax to hold was completely restored, and his right to his real estates in this countrj secured, both by the treaty, and the act of assembly, passed in 1784, respecting confiscations of British property.
    3. That the act of assembly in 1796, usually called the act of compromise, and made for the express purpose of quieting the disputes between the purchasers from Denny Martin Fairfax, and the commonwealth, rendered the former capable in all respects, and put an end to the controversy.
    4. That the deed from Denny Martin Fairfax, conveyed all his lands and rents in the Northern Neck, to the appellant, ex-c'ept the tracts expressly reserved and the quit-rents; and that the reservation of the quit-rents in the said deed, did not include the rent in question, as it was not of that species.
    5. That the rent in question passed by the deed from Denny Martin Fairfax to the appellant; who could maintain ejectment for the lot, in consequence of the non-payment of the arrearages of rent when demanded by him, as there was no distress to be found upon the premises.
    Call, for the appellant.
    The rent in question is a rent charge, and belongs to the appellant. For it is not a quit-rent; which means a communication by the lord, for a sum of monej' or other valuable consideration, (called a composition,) of the ancient manerial and uncertain services, into a fixed rent, payable to him in his seignoral character, Spelm. Gloss. 476: and although there were no ancient services in this county, to constitute quit rents, according to that definition, yet, by analogy, two had been invented: The first was the shilling sterling reserved for every fifty acres of waste land granted by the crown ; and the other, the shilling sterling *for every fifty acres granted by the proprietor of the Northern Neck; both founded in composition, and the tenure feudal, according to the words of the grants: Those by the crown purporting that the lands were to be held of the king, his heirs and successors, as lords of the manor of East Greenwich, in England; and those by the proprietor that they were to be held of him, his heirs and assigns, as feudal lords of the Northern Neck. It was in the latter sense only, that the term was understood, with regard to the lands in that district, by the proprietor, the whole people of the Northern Neck, and the legislature. 2 Tuck. Black. 42; Chan. Rev. 61. The rent in question, however, has no resemblance to either, 1. Because there is no composition expressed; nor does the deed agree with the grants, either as to price, quantity of laud, rent, or mode of payment. 2. Because the act of 1752, for the establishment of Winchester, destroyed the seignory as to the town lands, and converted them into socage. Edi. 1752, private acts, 27. The consequence is, that the rent in question was not abolished by any of the acts of assembly respecting quit-rents. For the act of 1779, Ch. Rev. 98, relates to royal quit-rents onlj': that of 1777, preserves those of one shilling sterling in the Northern Neck: that of 1782, is professedly a law of sequestration only, Ch. Rev. 176: that of 1783, admits their continuance, Chan. Rev. 206: that of 1784, page 31, recognizes them as existing rights ; and that of 1785, page 36, coupling composition and quit-rents together, abolishes the quit-rents, but exacts compositions. It follows, that none of the quit-rent statutes affect the case. Neither is it taken away by the belligerent and escheat laws. Not by the first; because none of them confiscate the property of British subjects. For the act of 1777, sequestered it, Ch. Rev. 64: that of May 1779, continued the sequestration; for it vested the lands in the state by way of escheat, and directed an office, that the proceeds might be subject to future deliberation, Ch. Rev. 98: and that of October 1779, ch. 39, confirms the actual sales, but saves the rights of the owners. *Ch. Rev. 118. Not by the second; because Denny M. Fairfax was capable of taking by devise. For it is clear that an alien may take by grant, Co. Bitt. 2; Perk. '£ 48; 2 Black. Com. 292, 293: And, as the devise is in nature of a conveyance, and the devisee takes by purchase, Perk. § 505; Cowp. 305, 306, such dispositions have always been considered as effectual. Pow. Dev. 316, 318; 2 Ves. 286, 362, 538; Shep. Touch. 414. The consequence is, that as no office had been taken, Denny M. Fairfax was seized at the date of the treaty of peace; for the freehold was in him before entry, as nothing, in such case, descends upon the heir. Co. Bitt. Ill, a. But, if so, the seizin could not be disturbed by the public afterwards; for his right to hold was established as well by implication, as by the words of the treaty. 1. Because the right to take the inquisition was impliedly relinquished as contrary 1 to the policy of states, and the law of nations, agreeable to Calvin’s case, 7 Co. 27, and the acts of assembly in 1777, 1779, Ch. Rev. 64, 98; which declare that “the public faith and the usages of nations require,” that the estates of innocent individuals should not be confiscated; and that the general assembly, “from that generosity which so hon-ourably distinguishes the civilized nations of the present age, ’ ’ had taken measures to preserve them from waste and destruction. 2. Because, if that be not so, then such a relinquishment was necessary on both sides, as Calvin’s case would, probably, not have protected the lands of American citizens in Fngland, upon the ground of anterior allegiance. For the modern rule is, that, when allegiance determines, the character of subject determines also. 8 T. Rep. 40; 1 Bos. & Pull. 168. Consequent^, as Great Britain released the allegiance, that case was so far overthrown ; and, therefore, if the people of America could have escheated, the British government might have done so likewise. 2 Bro. Civ. R. 273, 274. But, without dwelling upon considerations of that kind, the words of the treaty embrace the case, 1. Because, inquisitions of escheat and judgments of confiscation ’’''serve to perfect forfeitures ; which are never complete until actual seizure, confiscation and reduction into the treasury. 4 Black. Com. 382, 386, 387; Plowd. 486; Cro. Car. 431, 461; 3 T. Rep. 733, 734; 2 Inst. 206; Bynk. 9; Jur. Pub. lib. 1, c. 7; Biv. lib. 38, cap. 23. Accordingly, the act of assembly prescribes expressly that an office shall be taken: and, in that respect, is stronger than the statute 33 Hen. 8, cap. 20, which, in terms, dispensed with it; but still an inquisition was thought necessary. Page’s case, 5 Co. 52; and the argument is a for-tiori under the act of assembly. 2. Because good faith required that belligerent laws, made to weaken the enemy, should cease to operate at the return of peace; and therefore the sixth article declares that there shall be no future loss or damage to property on either side; which could not be observed, if the public were at liberty, under colour of a distinction between escheat and confiscation, to deprive the owner of his estate. 3. Because the treaty must have meant cases of this kind, or none, for it could not have related to confiscations to be created under fresh statutes, as that would have supposed a renewal of hostilities at the moment of declaring peace; and therefore it must have referred to property not completely carried into the treasury under existing laws. 4. Because the fifth article relates to particular classes of British subjects only; but the sixth to all persons on both sides; and to confine it to refugees, would make the contracting parties to have been less anxious for the protection of their own meritorious citizens, than for persons who had only a fortuitous connexion with them. 5. Because the discrimination in the fifth article proves that escheats were expressly contemplated. For, as to the lands already sold, the states were to be solicited to restore them; but, as to those not sold, no such request was to be made, as the prohibition, against future confiscations, was deemed sufficient: and, in this view, the act of 1784, page 8, prohibits all future confiscations, except as to property actually sued for, by the public, in some court prior to the ratification of the treaty: *Which exception has no relation to cases like the present, and therefore the enactment protects them. 6. Because the rent was a debt in nature of a mortgage; and therefore was secured by the treaty expressly. But, if there were any doubt upon the treaty of peace, that of Rondon in 1794, removed the difficulty; for it provides that persons of either nation, then holding lands in the other, shall continue to hold them, and shall have power to dispose of them, as if they were natives. The result is, that the rent in question was preserved by the treaties; and, not being a quit-rent it was neither abolished by any act of assembly, nor reserved to the vendor; but passed by the deed from Denny Martin Fairfax, to the appellant, as the seizin had never been disturbed, 1 H. Black. 30; 3 T. Rep. 88; 2 Call, 249: and then, whatever might have been the rights of the commonwealth, they were all relinquished to the purchasers by the act of compromise in 1796, as the rent issued out of the land. Swinb. 140. The appellant being therefore entitled to the rent, may maintain the present action to recover it, as the remedy followed the assignment. 14 Vin. 44; Cro. Jac. 510.
    Stuart and Hay, for the appellee.
    The appellant .cannot recover, because Denny M. Fairfax was an alien, and therefore incapable of holding- or conveying lands. For, upon the dissolution of the former government, all the existing laws, and the rights acquired under them, ceased, until new laws were made, and new rights acquired under the act of convention. Ch. Rev. 37. But these new laws were necessarily prospective', and did not revive any antecedent rights. Therefore, supposing it to be true that, if the dissolution of the former government had not abrogated the existing laws, Fairfax might have claimed, it is not true in- the actual state of .things which took place upon the declaration of independence. The supposition, however, is unfounded. For it is a settled principle of the- common law, which was adopted by the act of . convention, that an alien *can neither inherit, hold, nor convey lands, as no allegiance is- due from him; and therefore Denny M. Fairfax was utterly incapable of holding, or . imparting any right, in the property sued for by- the appellant. ' It is to no purpose to say, that Virginia and Great Britain formerly owed allegiance to the same- sovereign, and that the citizens of both countries - might reciprocally hold lands .in the-other; because that-relation was-broken up, and the capacity to hold, destroyed by'the revolution. The doctrine of antenati is inapplicable to the case before the court; because it- is founded on the British principle, that once-a subject is to be always a subject, and that a man cannot adjure allegiance to his government. 1 Black. -Com. 371. But that is a principle not admitted by us; on the contrary, we insist upon the unqualified right of expatriation. However, all the reasons stated, in Calvin’s case, 'against aliens holding lands, such as their acting the part of concealed enemies, -carrying the wealth of the country away, - and betraying the secrets of state, apply as well to the antenati as to other foreigners. There is no particular injury done to British subjects by this doctrine as growing out of the revolution ; for the same result .would have followed from the annulment of allegiance by any other cause. Thus, if -a man were to expatriate himself, and abjure allegiance to the United States, the like consequences would take place; for it is not the mere division of territory, or the local habitation of the person, but the total abrogation of allegiance which produces the effect. The treaty of peace does not ‘help the case; for that relates to , confiscations as an act of war, and not to forfeitures growing out of general municipal regulations. Read v. Read, in this court, • (ante, 160.) We do not resist upon the ground that it was enemy’s property, but’ upon the substantial foundation, that an alien cannot hold lands in this country, and therefore cannot convey any- title to them. Neither does the treaty of London, in 1794, assist the appellant. • For that treaty says nothing about rents; and ' the appellee; and -not Denny-M. Fairfax, was in ■ possession ' *of the land; which therefore -is not embraced by it. But if Denny- M. Fairfax had been capable of taking and holding, he was not, upon common law principles, entitled to these rents; and therefore his assignment of them to the appellant was void. For lord Fairfax ■ had not seizin of them at the time of the devise, and consequently could convey -nothing, because a mere right of entry will no more pass by a will than a deed: And, in estates subject to a condition of re-entry, he that has the right of re-entry, although he has an.estate in the condition, has not the land, until the condition is broken, and an actual re-entry is made. Co. Litt. 214, 215* -Pow. Dev. 46, 182, -199, 202, 229, 234; 1 Ves. 423; Tabb v. Baird, 3 Call, 475. But whether these positions be right or wrong, it is obvious that the appellant cannot recover. For, if Denny M. Fairfax had any ■title, he did not convey, or mean to convey, it by his deed to the appellant ': On the contrary, he expressly reserved it. For it was a quit-rent; and was always so considered -by the tenants and collectors of lord Fair-fax. It has all the qualities of a quit-rent, 2 Black. Com. 42; and differs from that of the .two shillings sterling for every hundred acres in nothing, except amount. But it is not the amount, but the terms of the reservation which constitutes, a quit-rent; and here the deed- is by lord Fairfax,- as proprietor of the Northern Neck; and the meaning is, that the rent shall b© paid to him and his heirs as proprietors. If, however, it be a quit-rent, then Denny M. Fairfax had no • title to it himself; and therefore could convey none to the appellant. -For all quit-rents were abolished by the acts of assembly: which, in effect, were an actual confiscation of it; and therefore it neither was, nor could have been, resuscitated by the treaties. The act of compromise, as it is called, does not extend, to the case; for-subjects of this kind were not in the contemplation of the legislature, at the time of making that - act; and therefore it says nothing about rents: which, consequently, remain liable to the same objections, since passing the act, as before. . For the statute only gave, to Denny *M. Fairfax and his representatives, ■ those lands which -lord Fairfax had expressly appropriated to his own use; but the lot in question was not of that character; and therefore neither that, nor the rent was affected by the law.
    Randolph, in reply-
    There was a clear distinction between quit-rents, and rents of the kind in question. The former, which, both in vulgar and legislative language, meant the two shillings sterling for every hundred acres .of waste land granted, was unique in its character, and was reserved to the proprietor in virtue of his seignory: But the latter, that is to say, those of the kind in question, were reserved to him in his natural capacity, and created by deeds given by him as owner in socage. This distinction prevailed in all his proceedings: For theseignoral rents were kept in one set of- books, and those due upon lots in town,' and other socage property, in another: which shews that he did not consider them as the same. It follows that the rent in question was not a quit-rent, but a common rent charge; and therefore, was neither abolished by the acts of assembly, nor embraced by the reservation contained in the deed from Denny M. Fairfax to the appellant. Consequently, it passed by that deed; because a right of entry, accruing by forfeiture for non-payment of a rent charge in fee, may be conveyed ; for it operates as a limitation, and not as a condition, Cro. Jac. 511. The law concerning pretensed titles has no application; because that meafts a contested right to the land itself, and not to an entry given to enforce payment of a debt. Denny M. Fairfax was capable both of taking and holding lands. For he was born before the revolution, and therefore had the privileges common to both countries. Consequently he was 'seized of the rent at the date of the treaty of peace, as no office had been taken for the commonwealth; and therefore he was protected by the provisions of that treaty: which were rendered more effectual by the treaty of London; for being siezed of the rent which could command the land as an incident, the case is within *the ' equity of the latter treaty. But the act of compromise, which was intended to cover all the rights of the appellant, removes all difficulties, • and puts an end to the controversy. For it gives capacity, in words, to Denny M. Fairfax, and confirms the claims of the appellant, as to every thing not expressly’ surrendered; because it conveys the right of the commonwealth to the latter, and he had that of Fairfax before.
    Cur. adv. vult.
    
      
       Northern Neck. — The principal case is cited in Stephen v. Swann. 9 Leigh 414, 420.
    
    
      
      
         Alieus — Capacity to Take by Devise or Grant. — The principal case is cited on this question in Hunter v. Fairfax. 1 Munf. 233.
      Statute of Mortmain — Status in Virginia. — See the principal case cited in foot-note, to Kivanna Nav. Co. v. Dawsons, 3 Gratt. 19 ; Fayette Land Co. v. Louisville & N. R. Co., 93 Va. 291, 24 S. E. Rep. 1016.
    
   ROANE, Judge.

This is an action of ejectment brought by the appellant against the appellee for a lot in the town of Winchester. The principal object of the suit is, to try the title of the appellant to a rent of five shillings per " annum alleged to be due on the said lot, and claimed by him as grantee under Denny Fairfax. The said Fairfax having in his deed expressly reserved all quit-rents, the appellant has no right to recover in this casé, if this court be of opinion, that the rent in question is a quit-rent. Being clearly’ of opinion, that that rent is a quit-rent, I shall confine my observations principally to that point, although other topics were discussed at large in the argument.

It is expressly agreed in the case before us, that the two shillings per hundred acres reserved on lands granted in the Northern Neck, and on those granted in the other parts of Virginia, before the revolution, was, throughout those territories respectively, denominated a quit-rent. It is also admitted by the counsel on all sides, in this argument, that those sums are and were quit-rents; although Mr. Call, counsel for the appellant, has made a complete felo de se of his admission, by bringing us to the test of the English idea of a quit-rent. He contends, under that standard, and refers to 2 Black. Com. 42, that it is essential to a quit-rent that the land should be held under a manor, and also that, on payment of the rent, the tenant should go quit of all former services.

If this be the true standard, then the said two shillings rent is not a legal quit-rent: Then there never were any quit-*rents in this country; for 1st, the grant for land by lord Fairfax, stated in the 4th finding of the ease (and it is further found that all the grants for waste lands were uniformly alike) makes no mention whatever of a manor; and 2dly, the grant by the governour of Virginia, stated in the 6th finding of the case, (and all his grants were undoubtedly alike in this respect) annexes other services, besides the payment of the rent, to be rendered by the tenant, viz. the cultivation and improvement of the land. That gentleman, then, must either give up this favourite English criterion of á quit-rent, or retract the concession he has made. As such a retraction cannot for a moment be contemplated, we must resort to some other criterion of a quit-rent, adapted to the ease of the said two shillings, and decisive of the question before us. The criterion I shall embrace is that which is sanctioned by the popular and legislative understanding on the subject, through a long succession of time.

That tinderstanding has thrown into the class of quit-rents, those rents reserved to the king, or proprietor, as the case may be, on an absolute grant of ■ waste land ; on a grant, too, for which an original price was paid, generally denominated composition money, and on which a trifling rent is reserved, as a mere feudal acknowledgment of tenure. This understanding was universal as it related to the two shillings rent, because that rent was also universal, throughout the whole country. The rent of five shillings in question was only, not universally, so denominated, because it was in itself local and particular. It was not known in remote places that such a rent existed, but so far as such knowledge did extend, viz. in and about the town of Winchester, the rent in question is agreed to have been generally denominated a quit-rent by the people, and sometimes so denominated by lord Fairfax’s agents. Had towns and grants of this description been generally established throughout that territory, there is no question, but that this rent would have been as universally denominated a quit-rent, as the rent of two shillings per hundred acres on lands.

*1 have said that .the rent of two shillings per hundred acres on land was universally understood to be a quit-rent; but, in this, I am incorrect. The understanding was confined to the territories of the Northern Neck, and of the residuary part of Virginia, respectively, in relation to their own respective quit-rents. The people of the one knew nothing (so far as we can judge from the case agreed) of the rents existing in the other territory, and there is no usage found, on this subject, extending beyond their own respective rents and confines. Like the five shillings rent nowin question, the two shilling rents were universally so denominated by the people respectively to whom they were known, and by whom they were payable, but no further. There is, therefore, in this respect, a perfect analogy between the two cases. Am I not, therefore, correct in saying that the rent of five shillings is as much sanctioned as a quit-rent by the popular opinion and understanding, within the sphere of its existence, as the rent of two shillings?

If there be any general passages in our laws, or in any treaties upon our laws, which seem to confine the idea of quit-rent to the two shillings rent, we must attribute it to the same want of knowledge of the existence of this local rent of five shillings. But this court cannot now plead such ignorance in excuse. The case is properly brought before us; and we may try this rent by the same standard and the same principles as apply to the general rent of two shillings per 100 acres.

The rent before us entirely corresponds with the two shillings rent, payable on lands in the Northern Neck, in all its essential features? For 1st. The tot granted in this case is expressly stated in the deed to have been “heretofore waste and un-granted land.” It is also further agreed, that there is no survey extant of that land prior to the establishment of the town of Winchester. The act of assembly on that subject does not pretend, that that land was ever before granted, or appropriated; and the aid of the legislature was only obtained for the purpose of conferring, on the grantees *of lots, the privileges enjoyed by the freeholders and inhabitants of other towns: As to any right of property passing from the grantor to the grantee of the lots, the act of assembly is wholly silent and inapplicable. This feature, then, of being land ungranted by the proprietor, prior to the very grant in question, places this lot on a common ground with general grants of vacant tracts of land in the said territory. 2d. It is found that composition money was paid on the grant of this lot, as was also the case on granting vacant tracts of land, and the grants, in both cases, convey the absolute property. It is not indeed stated in the case, that the price paid for the lot was called composition money : that might have been deemed by the appellee unnecessary to be stated, as I presume it is. It is enough that that price agrees with the general composition in all its essential features. 3d. In both species of grants, the rent is denominated alike: it is called, j.n both grants, a “rent,” ora “fee rent,” and is not called a quit-rent in either. 4th. In both cases the said rents are respectively perpetual; and Sth. The rents, in both cases, are of trivial sums, fully adequate to import an acknowledgment of tenure, but in no degree commensurate with the annual value of the lands. Wherefore, then, shall we merely, on the ground of variation in the amount of the rent or composition (a circumstance well compensated by the difference of situation and value) differ the cases of the two rents, and lose sight of all those great traits, which are common to them both?

I touch not those cases in which lord Fairfax stood in any other relation, than merely as lord of the fee. I touch not those, in which he had become a private proprietor. The general assembly of Virginia, anxious to abolish feudal and perpetual rents, due to the government of Virginia and to lord Fairfax, as soon as his rights had fallen into the hands of aliens, respected, as beyond their reach, that perpetual revenue which may have been, in a multitude of instances, reserved by one individual from another, on grants of land held by private ownership.

*Anxious to free our people from those inconsiderable though degrading rents which so strongly partook of a feudal nature, and which were due to the lord of the fee, they respected those rents which were due to the private owners of the soil; which were of considerable amount; which bore some proportion to the actual value or profits of the lands; and which (the grantee having never paid a price for the land, on an absolute acquisition thereof,) formed the only compensation, receivable bj the proprietor, for the possession and enjoyment of his land.

I understand that this rent is now to be recovered on the principle that it is a ground rent: but I call on this court to shew any instance of a ground rent, in which the lessor of the premises had not acquired a private right to soil. Nord Fairfax was fully sensible of the distinction which existed beween his proprietary rights and‘his private rights of the soil. It was his uniform practice to make a conveyance of lands in fee in the usual form to some friend, and take back a re-conveyance thereof, when he meant to acquire the private fee simple property in them. The case before us expressly finds that this was done in relation to the two manors, and to the lot No. 18, in the town of Winchester. In relation to the manors, this might (but for the uniform practice aforesaid) have probably been dispensed with ; for the leases granted to the tenants thereof convey not the absolute property of the soil, and carry on the face of them, almost in every line, strong badges of private ownership on the part of the lessor. No man can read those leases, and hesitate for a moment to believe that lord Fairfax’s intention was to convert the soil of those manors into private property; yet that was not sufficient in the opinion of the proprietor: those lands also were subjected by him to the uniform process of a conveyance and re-conveyance. But not only those conveyances, but those in relation to lot No. 18, in the addition to the town of Winchester, shew strongly lord Fairfax’s practice and sense on this subject. If this court should now adjudge the lot in question, or the rent *accruing thereon, to be the private property of the appellant, they will differ from lord Fairfax himself, who thought a conveyance and re-conveyance necessary, whenever he wished to acquire private property. When I speak of the lot in question as not having become the private property of lord Fairfax, I speak with reference to the actual rules of his office, and his own construction of his grant. Further I would not be understood to give a decided opinion.

Were it permitted to me to go out of this record, I would refer to the 6th finding in the case of Hunter v. Fairfax, formerly argued before this court, wherein Mr. Fair-fax and the other party agreed, 1 ‘That lord Fairfax died seized in fee of sundry tracts of land in the county of Frederick, and other counties in the Northern Neck, containing altogether 300,000 acres, which had been granted and conveyed by him to B. Martin in fee, upon the same terms as other lands were conveyed and granted by him in fee as aforesaid; which lands were soon thereafter re-conveyed, by the said Martin, unto him in fee.”

This word altogether, taken in connexion too with the large number of acres mentioned, strongly imports that lord Fairfax had the fee simple property in no lands in the Northern Neck, which had not undergone that process. But however that may be, as the appellant does not lay claim to all the lands, and the rents due thereon, existing in the Northern Neck, but only to such as had become the private property of lord Fairfax, or his ancestors, and has not shewn in his case, any other process by which the private property of the soil could be or was acquired by lord Fairfax than such conveyance and re-conveyance, I am perfectly warranted in saying, upon the case before us, that no other process can be known to us on this subject, how many others soever may exist (if any such in fact do exist) or rest within the private knowledge of this court. We are to try this cause upon the facts agreed between the parties, and not upon facts which may be alleged, or may in fact exist, but do not exist upon this record. I presume also *that the appellant is bound by the admissions, express or implied, of

those under whom he claims; and I also presume that lord Fairfax has strongly admitted that the private property of the lot in the deed mentioned did not exist in him, by having omitted to extend to that lot, the process he deemed it necessary to resort to, for acquiring the private property of the lot No. 18, before mentioned. Are not the admissions of lord Fairfax the admissions of the present appellant? And does not the admission, now in question, bar him from setting up the present claim? Does this court sit here to vacate the admission of parties, and to give them more than they can ask, or do conceive themselves entitled to? I presume not.

Being clearly of opinion, upon the case before us, that the private property of the soil was not, nor could be acquired by lord Fairfax, except by conveyance and re-conveyance, I can take no notice of any alleged acquisition by survey, even were that survey for lord Fairfax’s own use. All the notice of such surveys that I can now take is, that in relation to the surveys of the lots in Winchester, lord Fairfax has admitted that they did not vest the private property of the soil in him. He has admitted this, by making and taking a conveyance and re-conveyance of the lot No. 18, in said town, in order to vest in him such property therein. He has admitted that the surveys of manors, though confessedly made for his own use, were not adequate to such purpose, by using a similar process in relation to them. Can we therefore say, upon this record, that the private right of soil was acquirable in any instance by a mere survey? The act of compromise (to be hereafter more particularly noticed) states indeed, hypothetically, that this might be done. I will only add at present, that whenever a case shall occur, which will state facts to justify that inference, that act shall receive from me a correspondent construction: but the general and hypothetical words of an act, grounded perhaps on the representation of an interested party, cannot make that to have an-tecedently existed, which *'on a fair construction by the judiciary, shall be found to have had no such existence.

But whatever may be the case of the survey confessedly made for lord Fairfax’s own use, the survey of the lots in addition to the town of Winchester, was not of that character. It was for the use of purchasers who were to pay a high rate of composition upon the grant of the soil. Lord Fairfax indeed acquired a right of soil in the lot No. 18; but that not by virtue of the survey, but by virtue of the conveyance and re-conveyance before mentioned.

I have said that the act of 1752 related not at all to any rights of property respecting the lot in question. It only gave to the purchasers of lots the privileges enjoyed by the citizens of other towns. When in the second section of that act lord Fairfax is called the proprietor of the lot added to the town, it is only in 'the sense of general proprietor of the Northern Neck. It is not in the sense of private owner of the soil. This is incontestibly proved by the finding in the case, that the lot in question was waste and ungranted land prior to the grant to the person under whom the appellee claims. This act of assembly is therefore entirely incompetent to shew, that the private right of soil in the lot in question was ever acquired by lord Fairfax.

If lord Fairfax, anxious to accelerate the settlement of his territory, instead of waiting until private adventurers had found and entered for waste lands, had himself set apart and surveyed into small tracts, a large tract of waste land, and invited individuals to take grants thereof, paying a higher rate of composition and of quit-rent, in consideration of the trouble he had been at in making the said location and survey, can it be questioned for a moment that the grantees of those lands would have holden on a common footing with other grantees in his territory? But this mode is no how' different from the one before us, except that the latter relates to a lot of ground, and the former to a tract; a circumstance certainly immaterial.

*In the case before us, the very lot in question being vacant land, might, prior to the survey by lord Fairfax, have been taken up by an individual. But lord Fairfax, anxious to enlarge the town, and thereby not only quicken the settlement of the adjacent country, and thus increase his revenue, but also enhance the value of his own adjacent property, did not choose to await that slow process, but laid off the land into lots, and invited purchasers. For his trouble herein, he was amply remunerated, by the high rate of composition, required on a grant of the land. These were the motives that operated on him in this business. Wherever he appropriated or reserved any lot or lots to his own private use, let those rights be respected; but let us carry it no further. Admit that, in the case before us, the survey of lots suspended the general right of adventurers to survey it as waste land, that’ suspension was clearly taken away by lord iTairfax’s invitation to persons to take grants thereof. The question is not whether; a suspension of this kind ever existed or not, but whether lord Fairfax ever acquired or intended to acquire the private right of soil in the lot in question? Most certainly he did not.

Having compared the grant in question with the general grants of waste lands in the Northern Neck, and found in them a perfect correspondence, I will now brieflj' compare it with the leases in .the manors stated in the case, and which are con-, fessedly private property, and I believe We shall find no manner of similitude between them. . The lessees of the manors have paid no original price or composition therefor: they have ’acquired no absolute property therein, but -only the use thereof during a term. ■ The rents payable therefor are 20 shillings or 40 shillings per hundred acres per annum respectively: a. sum too great for a mere feudal acknowledgment , of tenure, and bearing a good, proportion, perhaps, at the time of the grants, to the yearly value of the land. Besides, this •manor .land was not only converted into private property by the process before mentioned, but the lessees in all their covenants bear strongly. *the badges of private ownership. In all these respects, the ■ grant before us is entirely dissimilar.

If any stress is laid on the finding in the case, “that the grants of all lands were uniformly alike, except, as to grants of lots in places laid off for towns,” it may be answered, that, such variation is rendered necessary, by the difference of the subject; such as the different rates of composition and rents, and the different conditions and covenants necessary to be obtained in the two instruments. If any essential and substantial variation existed, between the two grants, going to the merits of this case, it was the duty of the appellant to have shewn them to the. court in his case. The variation stated in this finding, is satisfied by the immaterial.variations just mentioned, and which are discernable from an inspection of the grants themselves as set out in the case. That inspection does not exhibit any essential and substantial variation going to the merits of the case: the appellant himself has not stated, or even pointed out, any such; and we cannot make his case better than he himself has made it.

I come now to consider some of the acts of assembly on this subject.

The acts of October 1777, ch. 2, and May 1779, ch. 13, abolished quitrrents throughout Virginia, except in the Northern Neck. They did not invade the quit-rents of lord Fairfax, because he was a citizen, although every reason assigned for the abolition’ equally applied to his quit-rents. They did not attempt such invasion until it was ascertained, or at least believed, that those quit-rents had devolved on alien enemies. Then they did sequester them, and ultimately confiscate them.

Those acts did abolish the quit-rents in the residuary part of Virginia, after expressly premising that it was derogatory to our people to hold their lands “subject to any servile, feudal, or precarious tenure, and to prevent the danger to a free state from perpetual revenue.” Acts 1779, ch. 13, p. 98. Here then is a strong legislative exposition of what is meant by a quit-rent. It is a rent which is servile, feudal, and perpetual.

*If the power of the legislature had then extended to and been exercised oyer the quit-rents of lord Fairfax, would not the rent in question have been also emphatically included? Nay, had there been a similar grant of lots in the other part of Virginia by the governour, would not the rents reserved thereon have been equally destroyed? Can it be denied that the rent in question is a servile and feudal rent, or that the appellant can claim it only as successor to the lord of the fee? for the lot in question had never been specifically appropriated by lord Fairfax to his own use. If the decision of the district court be now reversed, will you not, sir, create a lord paramount as to the property in question? And "will not the inhabitants of Winchester be subjected forever to the degrading vassalage of paying to such lord paramount, a servile, feudal and perpetual revenue? Will you not place those citizens in .that abject state, from which the legislature of o'ur country, at the very instant of the revolution, solicitously laboured to emancipate all our people? Will you not in fact, sir, revive upon the people of the Northern Neck, a partial proprietorship? How far that proprietorship may hereafter be attempted to be extended in consequence of the precedent now to be set, and the principles now contended for, I pretend not to determine. Great, as I trust the respect of this court will ever be for the rights of private property claimed by any suitor, I hope we shall never favour mere feudal and seignoral rights: nor permit ourselves to carry back our people, or any section of our people, to that degrading state of vassalage, so strongly ‘depicted by our laws; and, from which, the revolution ought to have liberated them.

When the legislature of Virginia, by the act of 1779, discharged all ‘ ‘proprietors of lands” not only from quit-rents, but from all other “reservations and conditions in the patents or grants of land from the crown of England,” extending even to a discharge from the condition of cultivating part of the land granted, would not this abolition equally have extended to lots in town, (if there were any such,) granted ^merely and directly by the crown? Are not the owners of the lots equally “proprietors of lands,” within the very language of the act; and would not every reason of the law equally extend to them? Nay, as the condition of cultivating a portion of the lands granted, is equally useful to the country with the condition of building upon lots granted in towns, would not this latter condition have been equally destroyed, when imposed only by the grant, however it would have been saved, as not being within the act of 1779, when imposed by an act of assembly?

The analogy is very strong between what the assembly actually did by the acts of 1777 and 1779, in relation to Virginia in general, and what they would have do^e at the same time in relation to the Northern Neck, had they not been restrained by a respect for lord Fairfax’s rights as a citizen. The abolition, however, effected by those acts, has been extended to the Northern Neck, since the death of lord Fairfax.

If the act of 1777, ch. 2, which gave credit to the people of the Northern Neck for their quit-rents, as part of the public tax, has, by the terms of it, seemed to confine quit-rents to the rent of two shillings per 100 acres on land, is there a single reason why this indulgence should not have been equally extended to the owners of the lots in question? Are we not to consider it, at most, as an omitted case; as a case only omitted on account of the locality of the rent, and the ignorance of its existence, on the part of the legislature?

But if this be relied on as a legislative exposition of a quit-rent; if this court is rxot permitted to say, that where there is the same reason, there is the same law, shall not that body be permitted to correct itself? Shall not other legislative expositions be equally respected? In the very same clause of that very act, the legislature has corrected itself, by defining a quit-rent to be a servile, feudal and perpetual rent. This same idea is also kept up in the act of 1779, as before stated; and in the act of 1782, ch. 8, the citizens of the Northern Neck are credited for their quit-rents, by *the general terms of “all quit-rents;” leaving it to the judiciary to decide what those quit-rents are. Do not these legislative expositions entirely embrace the rent before us, and abundantly overpower the solitary exposition which has been relied on? And if the act of 1777, by the particular terms of it, excluded the citizens of Winchester from the benefit thereby conferred, in opposition to the reason and equity of the case; do not the general terms of 1782, authorize us to comprehend those citizens, and effectuate the manifest intention of the legislature, by placing all those who stand under like circumstances upon a common and equal ground? I conclude, therefore, most clearly, that the legislative definition and exposition of a quit-rent, as well as the popular understanding on the subject, entirely extends to, and includes the rent now in question. I will only add as a further legislative idea, on the subject before us, that the act of 1785, ch. 67, (and perhaps other acts,) has coupled together and destroyed composition and quit-rents ; thereby plainly meaning to comprehend, as quit-rents, all those rents reserved in grants, for which composition money is paid, upon an absolute acquisition of the property.

I have asked this honourable court, whether it will, by a reversal of the judgment before us, revive upon the people of the Northern Neck, a partial proprietorship. I will go further and ask, whether they will do this, notwithstanding the renunciation of such proprietorship by Mr. Fairfax, under whom the appellant claims? That renunciation is explicitly contained, so far at least as it respected the vacant lands, in the agreement stated in the act of compromise of 1796. The renunciation did not, indeed, extend expressly to the obsolete and derelict claim of quit-rents, for reasons presently to be assigned or alluded to. That renunciation is also founded' upon a full and valuable consideration; upon the grant by the commonwealth of Virginia, of at least 300,000 acres of land,, claimed by Mr. Fairfax, as his private property ; but which, it is notorious, 'would, have been withheld from him, (but for the compromise aforesaid,) by *the-judgment of this court, affirming that of the district court, who had adjudged that his alienage deprived him of all rights under lord Fairfax’s will.

According to ordinary calculation, it would have been supposed that that renunciation, and the act of assembly founded thereon, had given a death blow to the proprietary rights in the Northe-n Neck. Exclusive of the proprietary right to vacant lands, there is only one other aspect, in which it is possible for such proprietorship to be revived, or contemplated; and this, it seems, is to be the ground work on which this superstructure is now to be raised. The trifling sum now in dispute, like the foothold required by Archimides, is to produce consequences which none can foresee, or estimate. Notwithstanding that the act of 1796, did not deign to comprehend quit-rents in the renunciation therein contained on the part of Mr. Fairfax; notwithstanding the general assembly preter-mitted this most favourable opportunity of effectuating such purpose; for certainly under the then circumstances of the case, the rapacity of Mr. Fairfax, or his grantees, might have been well satisfied with the enormous grant of 300,000 acres of perhaps the best lands in the Northern Neck; we are now to be assailed; a proprietorship is now to be resuscitated on this obsolete and exploded ground of quit-rent!

I will only add upon this subject, that the omission to comprehend quit-rents in the renunciation contained in the act of 1796, arose most probably from its being believed to be a mere act of supererogation. That belief might have arisen (to say nothing of the merits of the case) not only from the non-claim of those quit-rents on the part of Mr. Fairfax when he was claiming all the rest of lord Fairfax’s estate, but also (among other minor circumstances) from the explicit disavowal of lord Fair-fax’s right thereto, made in the Virginia convention of 1788, among others, by the very able gentlemen who afterwards, as a purchaser under Mr. Fairfax, negotiated the compromise with the general assembly *"of Virginia. (See new edition of the debates, page 397.)

As the claim to the two shillings rent, formerly payable on lands in the Northern Neck, may probably gain strength from the decision -this day to be given, and I mean not to prejudge any thing, I ought, perhaps, to make an apology for having said this much upon the subject. My apology is, that in my view, that rent is absolutely identified with the five shillings rent now in question. I see no essential difference whatever between them. In the discussion of this case, therefore, I .cannot entirely keep separated things which in my judgment are intimately blended. If the five shillings quit-rent is now to be recovered, it is of little consequence what name the court may please to annex to it; whether they denominate it a quit-rent, or a ground rent. If some future claimant of the two shillings quit-rent shall be able to shew to a future court, as the appellee’s counsel have now shewn to me, that there is no essential difference whatever between the two rents, would he not on the authority of the decision now to be given, have a right to demand that that rent be also adjudged to be a ground rent, and that a recovery be, on that ground, awarded in his favour? any sequestrations or confiscations of quit-rents, by the legislature, notwithstanding? Would he not in fact, sir, be entitled to use this very decision as a precedent?

Although this court should now decide the five shillings rent to be no quit-rent, it does not decide, and cannot decide, between the now parties, the two shillings rent to be a quit-rent. Any thing which may fall from any of the judges in this cause, to shew the said two shillings rent to be a quit-rent, will hereafter be considered as entirely extra-judicial. It will be perfectly competent therefore, for any future claimant to shew that that rent is no quit-rent, and therefore recoverable, by shewing that there is no essential difference whatever between it and the present rent, and to use this decision as a precedent, which will declare the two shillings rent to be recoverable.

*1 have thus endeavoured to shew that the English idea of a quit-rent, as contended for on the part of the appellant, must be absolutely exploded' in this country, as not squaring with even those rents, which have been universally admitted to be quit-rents: That, according to that idea, there was no such thing as a quit-rent in this country; and that, as the only alternative, the popular and legislative idea on the subject must be resorted to, and that both embrace the rent in question: That, in respect of every essential feature whatever, there is a perfect correspondence between the rent before us, and the two shillings rent payable on land; and that the rent in question has been absolutely destroyed by the legislature, in common with the two shillings rent, by their abolishing all servile, feudal and perpetual rents.

In the whole course of this business, I lay great stress upon the circumstance that the land in question has never been appropriated by lord Fairfax to his own use. In the language of the act of 1796, (the act of compromise,) it has never been specifically appropriated and reserved to his own use, either “by deed or actual survey:” nay further, it has never been so appropriated and reserved by any other mode adopted by lord Fairfax, (if there are any others admissible upon this record,) to effectuate that purpose. So far from being made the private property of lord Fairfax, it had legally become the private property of the appellee and those under whom he claims; and on payment of the rents (be they quit-rents or not) no power on earth could justly deprive them of the land. This land was not more specifically appropriated by lord Fairfax to himself than any other tract granted out in the Northern Neck, nor were these rents more specifically appropriated to his own use, than the rents of two shillings per 100 acres reserved on lands. Lord Fairfax had an ultimate seignoral' right over the whole, but no private right in any. If Mr. Wood, who is stated in the act of 1752 to have granted out the original lots in the town of Winchester, had reserved a perpetual rent thereon, and especially if that rent had borne some *reasonable proportion to the annual value of the lots; nay, if lord Fairfax had, on similar terms, granted out his lot No. 18, in the said town, the said rents reserved thereon would have been ever respected by me as private property. But the rent in question, for want of a previous acquisition of the private property of the soil by lord Fairfax, stands only in the class of those feudal and perpetual rents, so strongly-exploded, and ultimately sequestered and confiscated by the legislature. How then does the appellant claim in the present instance?

It never has been decided, nor I believe would it be decided by this court that Denny Martin took any beneficial interest in lands under lord Fairfax’s will. It is objected that no inquest of office was ever found in relation to the rent in question: But I apprehend the sequestering and confiscating acts are equivalent thereto. It never could be expected, that there should be as many particular inquests of office as there are tracts of land in the Northern Neck. This general inquest amply supplies their place. I understand the appellant’s counsel, however, to wave this discussion, and to bottom themselves upon the act of compromise. Let us more particularly examine that act, and see whether Denny Martin is authorized by it to convey a title to the rent in question.

That act begins with a resolution, that in case the devisees of lord Fairfax will relinquish all claim to lands in the Northern Neck unappropriated at the time of lord Fairfax’s death, it would be adviseable for the commonwealth 1 ‘to relinquish all claim to any lands specifically appropriated by the said lord Fairfax to his own use either by deed or actual survey.” This resolution was replied to by Mr. Marshall, on behalf of the purchases of the land in the Northern Neck, who states, that he had considered the foregoing resolution, and had “determined to accede to the proposition it contains,” and declares that deeds shall be executed on their part extinguishing all claim to the waste lands, provided an act passes during that session “confirming on *the execution of such deeds the title of those claiming under Mr. Fairfax to lands specifically appropriated and reserved by the late Thomas lord Fair-fax, or his ancestors, for his or their own use.” The act then goes on to say, that upon the execution of such a deed as by the said proposal and agreement the said purchasers are bound to execute 11 all claim, right and interest of the commonwealth of Virginia in or to any lands lying within the said Northern Neck, which is by the terms of the said proposal and agreement to be relinquished, shall be thenceforth extinguished, null and void; and the said Denny Fairfax, &c. enabled to hold,” &c.

Now, can any thing be clearer, than that this act only extends to “lands specifically appropriated by lord Fairfax to his own use by deed or survey?” Or at most, under a liberal construction of the compromise, to rents which he had so specifically appropriated ; which he claimed as a private owner of the said lands or rents, and not merelj' as lord proprietor of the territory? Nothing can be clearer than that that act never meant to extend either to lands held by others in absolute right under the proprietor, or to rents due thereon and reserved by him only in that character, and as a mere acknowledgment of tenure.

In every point of view, therefore, I am clearly of opinion that the judgment of the district court is right, and ought to be affirmed.

• LYONS, President, CARRINGTON, Judge, and FLEMING, Judge.

In considering this cause, it w 11 be necessary, in the first place, to dispose of the question relative to the nature of the estate of lord Fairfax in the lands lying within the Northern Neck; for, upon the decision of that, most of the other points in dispute will depend : And we think that, independent of his seignoral rights, he was tenant in fee simple, without any act to be done. For the patent, to his ancestor, lord Cul-peper, was to him, “his heirs and assigns forever, and to his and their only use and behoof, and to no other use, intent or purpose whatsoever:” Which is the *aptest and most ample expression of a fee simple known in the law. Litt. 1 1.

The next question that occurs is, Whether the rent in dispute was a quit-rent?

And we think it was not. For it is in form a rent charge, Co. Litt. 143; Lili. Convey. 269, 270; and has no resemblance to a quit-rent, as a slight attention to circumstances will shew.

Under the feudal system, the lords of large districts of land kept part for their own use, which was called the manor, and was the seat where their authority and jurisdiction were exercised; the rest they distributed among their tenants, to be held of the manor, subject to indefinite services, 2 Black. Com. 90; which, for a sum of money, or certain fixed services, were af-terwards, by agreement between them, commuted into a small rent, payable to the lord in his seignoral character, in lieu of all other services. The sum of money, or fixt services, thus agreed for as the price of the exchange, was called a composition; and the rent a quit-rent, because it quit the tenant of all other services. Spelm. Gloss. 476; 2 Black. Com. 96. Consequently, there could be no quit-rent without a composition and a feudal tenure: And, to prevent disputes, the term itself, or some equivalent expression, was inserted in the deed. Pow. C. R. lib. 4, § 429.

In imitation of this practice, the kings of England, who considered this country as conquered from the Indians, and like Ireland, subject to the feudal law, granted the lands here to be held as of their manor of East Greenwich in England, and took a certain sum for composition, and a rent of one shilling sterling for every fifty acres of waste land granted; which being, necessarily, in lieu of all other services, as the grant required none but that, was uniformly called a quit-rent, and pervaded the Northern Neck, before the date of the proprietor’s title. Old Virginia Laws, 279.

Things being thus situated, lord Fairfax, upon taking possession of the district, followed the course which had been pursued by the crown ; took the same composition; ^exacted the same rent; and adopted the form of the patent, except that he did not mention the manor, as it was unnecessary, his character and residence implj'ing it.

The rent thus exacted by the proprietor was also called a quit-rent; was known, by that name, throughout the Northern Neck; and was constantly , so understood by the legislature. For all the acts, passed during the war, are expressly confined to it; and that of 1785 either has no relation to the quit-rents due to lord Fairfax, or it is a law upon the same subject, and should receive the same construction; especially as it couples composition and quit-rents together, and thereby indicates the species to be destroyed.

This view of the subject exempts the rent in question from the operation of the acts of assembly relied upon by the appellee’s counsel.

But it is said that this definition is felo dese; for, according to that idea, there could have been no quit-rent here, as there could have been no manor in Virginia. That, hovrever, was not the theory of the English law; lord Wexford’s case, Davies’s Rep. 15. Penn v. Lord Baltimore, 1 Ves. 449; and- the frequent recognition, by the legislature, of the seignoral rights of the proprietor, (among which the patent enumerates the power of creating, manors) shews they were understood here according to the notion in England.

Let it be otherwise, however; still that did not prevent a particular class of rents from acquiring a name and other incidental qualities from a supposed analogy to the English practice; and therefore it is unimportant whether there was a manor or not. For if the parties acted under the idea that there was one, and established the rent in conformity to it, it comes to the same thing.

To obviate this, it was said that the rent in question corresponds with the one shilling sterling rent in all its essential features ; and therefore may properly be called a quit-rent also. But we do not discover the resemblance. For there is no composition, nor retention of the seignoral rights expressed *in the deed: On the contrary, the grant is for a rent of greater amount, reserved to lord Fairfax, not as proprietor, but in his natural character, and in the ordinary form of a rent charge. To call it a quit-rent, therefore, is to pervert the term, and apply it to an object of a different nature.

The analogy, however, is supposed to consist in the duration and size of the rents; both of which, it is said, are free rents, and trivial, though fully adequate to establish the tenure; and that the composition may be inferred from the price.

But that whole argument surrenders the points in controversy, as it admits the necessity of a composition and tenure, without establishing the existence of either of them in the present case. For neither the duration, nor the si-ze of the rent, decides the character of it, there 'being many small rents, throughout the state, which nobody ever thought of calling quit-rents: and neither composition nor tenure can be inferred from any thing expressed in the grant, or set forth in the case agreed: Not the first, for the grant does not contain a syllable to that effect: Not the second; because the ten pounds mentioned there are stated as money received for the lots themselves, and not as composition for the services. This is decisive, as nothing can be added to the written contract, 8 Co. 155; especially where the object would be to impress a seignoral dependence, which the representative of the grantor does not allege, and the assertion of it would, at the time of the grant, have been odious to the grantee.

Again it was said, that the quit-rents in the manor of Leeds shew that the _ term was not confined to those of one shilling sterling.

The first answer to this is, that the deed is so imperfectly set forth, that it does not appear whether there was a composition expressed or not; nor what was the quit-rent spoken of: for it could not be the forty shillings; because that is reserved in a subsequent independent clause, and is there called *a rent, and not a quit-rent. But let it be that there was no composition stated in the deed, and that the forty shillings was the quit-rent intended, the exception will only prove the rule, as it shews that when a quit-rent, not of the common kind, was meant, it was expressed in the grant. Besides as the grant there is not in fee, the reversion was necessarily in the lord as feudal proprietor, 2 Black. Com. 175; and the deed, by naming it a quit-rent, shewed that the parties understood it to be in lieu of all other services; which was equivalent to the word composition.

It is said, however, that the rent in dispute had aquired the name by reputation, as such rents were called quit-rents by some of the collectors of lord Fairfax, and generally by the inhabitants of Winchester.

But there is no proof that the proprietor, or Lemon, ever recognized the term, or that it had grown into use any where else: And, if the contracting parties did not intend, at the date of the grant, that it should be a proprietary or feudal right, it could not become so afterwards. 6 Co. 64; Co. Lift. 202; 4 Co. 31.

After all, if it were admitted, that the rent in question was a quit-rent of some denomination or other, it would not help the appellee. For it seems to be given up that it does not come within the words of the acts of assembly, which are guardedly confined to the one shilling sterling. The admission therefore would not affect the appellant’s title.

To obviate this, it was urged, that the legislature were either unacquainted with the term, or that it was not recollected by them.

But that argument, instead of removing the difficulty, increases it, as it tends to prove that the rent in question was not contemplated at the time; and consequently was not intended to be embraced by the acts of assembly. Besides it is inconceivable how, if it was a known term and feudal in its nature, it could for so many years have escaped the attention of the legislature, the people of Winchester, and *the county representatives, during the enactment of such a number of successive laws upon the subject.

The preliminary words in the act of 1779, “that the proprietors of land within this commonwealth may no longer be subject to any servile, feudal, or precarious tenure; and to prevent the danger to a free state from perpetual revenue,” were next resorted to, in order to prove that the rent was extinguished.

But the first answer is, that the rent in question was neither servile, feudal, nor precarious; nor more perpetual than any other rent charge. The second is, that the succeeding words of the act of assembly explain the views of the legislature, and ascertain, precisely, the quit-rents which were to be destroyed, limiting them to such as were reserved to the crown.

It is said, however, that lord Fairfax had not, by conveyance, and re-conveyance, acquired the land as private property, but continued to hold it as proprietor, without being owner of the soil; and therefore could not reserve a ground rent out of it.

But we do not perceive the force of the objection. For we have already said, that the original grant from the crown was in fee simple; and it is unquestionably true, that the lord of a manor is owner of the soil held by him, the seignory being onlj’ an incident, and not part of the estate. Bro. Man. pi. 2; Bro. Comprise, pi. 30; 15 Vin. 228. Therefore conveyances and re-conveyances whenever made were from abundant caution, or for particular purposes only. For if they were in fee simple, without expressing tenure, they broke the seignory pro tanto. 15 Vin. 228; 1 Leon. 124; 6 Mod. 45. And if the first deed retained the tenure, the seignory was never destroyed ; which shews that, as a general position, such acts were useless, and could only have proceeded from the motives just ascribed to them.

The next enquiry is, as to the operation of the devise to Denny Martin Fairfax?

The law is clear, that an alien may take by grant. 4 Leon. 84. And there seems to be no distinction between ^friends and enemies; for lord Coke says, that it was decided in Croft’s case that, if an alien enemy takes a lease (which is part of the land), the king shall have it. 1 Inst. 2. This proves that even an alien enemy may take by grant: And there is the same reason for his taking by devise. For the statute enables the testator to dispose of his lands by will; and transfers the possession, without any act to be done, to the devisee, who takes bv purchase, exactly as the grantee does. Perk. 4 505; Co. Xjitt. Ill, a. Therefore, in the case of Hogan v. Jackson, it was held, “That a devise of lands operated as an appointment to uses, in nature of a legal conveyance;” and 1 being considered as a species of conveyance, they are to be governed by the same rule.” Cowp. 305, 306. Accordingly the best commentators have considered it in that view. Thus, Shep. Touch. 414, states, “That regularly whosoever may be a grantee may be a devisee or legatee;” and Powell arrives at the same conclusion. Pow Dev. 316. But, passing by the opinions of mere jurists, and coming to adjudged cases, that of the Attorney General v. Duplessis, or Knight v. Duplessis, may be considered as an authority in point, and was as follows:

In Trinity term 1751, the attorney general filed an information in the exchequer, charging that the devisee was an alien, and praying the usual relief. The defendants insisted that no office had been found, and that there was no proof of alienage. Upon a motion to stay waste, the court took time to consider, 2 Ves. sen. 286: and while they had it under advisement, the heirs at law of the testator filed a bill in chancery charging also that the devisee was an alien, and praying that a receiver might be appointed, and the deeds inspected. A motion for the receiver' was made, on the 20th of July, 1751; and although the attorney general did not oppose the principle of the motion, he suggested that it might possibly interfere with the cause in the •exchequer. Upon which lord Hardwicke observed, that he did “not remember any distinction between a grant, conveyance or devise to an alien ;” but refused the receiver, without deciding *the cause. The defendants then filed a demurrer to the information ; which necessarily put the point of law upon the alienage in issue, as the demurrer admitted it. The demurrer was overruled in 1752, and that judgment affirmed in the house of lords. 2 Ves. sen. 287. When the cause went back to the exchequer, a commission of escheat was ordered, and found for the devisee. But the crown officers, being dissatisfied, issued another original commission instead of a writ of melius inquirendum; and the defendants filed a petition to stay execution of the new process, upon the ground that under the former commission the devisee had been found not to be an alien. The petition came on, in July 1754, to be heard before lord Hardwicke- and the chief baron ; who were both of opinion, that, although an original commission was wrong, a melius inquirendum would have been proper. For, said the chief baron, “If the contrary (that is alienage) be found, she may traverse;” and lord Hardwicke following that opinion, says, “But, if found for the king, she may traverse that within the statute; and must plead that she is indigena born in these kingdoms, and traverse that she is an alien.” 2 Ves. sen. 540, 545. Which necessarily decided that the devise was good ; for, if it had been void, the estate would have descended upon the heirs at law, and the crown would have had no title.

That case therefore proves, that Denny Martin Fairfax took by devise; and the authorities, before referred to, shew, that the seizin was transferred to him by operation of law.

The question then is, Whether the seizin was ever disturbed before the date of the deed to the appellant? And, we think, it was not; because no office had ever been found to divest it. 8 Co. 169; 2 Inst. 206, 207; 3 T. Rep. 734. For the act of 1779, did not produce that effect; because that statute vested the property in the commonwealth, not by way of confiscation, but of escheat; and, in terms, required an office; which was to lie in the general court a month before the title should be barred, or any sale of the lands should be made. Ch. Rev. 99. These proceedings, *therefore, were indispensably necessary to convert the estate and extinguish the right of the owner; for the act of assembly falls far short of the provisions of the statute of treasons, 33 Hen. 8, ch. 20; which, in express words, dispensed with an office, and yet an inquisition was held necessary to complete the title of the king. Page’s case, 5 Co. 52.

This brings us' to enquire, whether the deed of Denny Martin Fairfax conveyed the rent in dispute to the appellant? We have already said, that it conveyed the land; arid that it transferred all the rents, except quit-rents, is equally clear. 1 H. Black. 30; 1 W. Black. Rep. 22. Consequently, as the rent demanded was not, according to our view of it, a quit-rent, it is not com-prized within the exception, but passed by the deed.

The only question, respecting the rig-ht to property, which could remain to be discussed, would be, Whether the commonwealth retained the rights conferred by the act of 1779, and can now proceed to an inquest of office; or whether they were not extinguished by the treaties between Great Britain and the United States, and our act of assembly in 1783?

Upon these points, the case of Read v. Read, in this court, (ante, 160,) was referred to as affording a rule for the decision of this cause. But, without meaning to decide the main question upon the treaty, we think there is no analogy between the two cases; because that was a descent claimed by an alien from an ancestor who died after the war; and this the case of an estate taken, during the war, by a devise which was capable of transferring it, whether the alien was able to hold, or not.

It is unnecessary, however, to pursue the enquiry; because the act of compromise in 1796, made during the pendency of a suit in this court, where all the points arose, has put an end to the controversy. For it makes Denny Martin Fairfax capable; and relinquishes to the appellant all claim, on the part of the commonwealth, to lands which had been appropriated by lord Fairfax: and it is impossible to ^maintain, that the lot in question, which he had actually sold and was in the receipt of an annual rent for, had not been appropriated.

The consequence is, that, as the case finds that the rent was arrear and actually demanded, the appellant, having- the right of the commonwealth as well as that of Fairfax, may sustain his action to recover the land as incident to the rent. 14 Vin. 44; Cfo. Jac. 510; 2 Call, 249. For the passage cited from Eitt. sect. 347, to prove that, although the grantor may distrain, he cannot re-enter, is no longer law; because the statute of 32 Hen. 8, cap. 34, and our act of assemblj, have altered the common law in that respect. For they give the same right of entry to the assignee, that the grantor had: and it makes no difference that the words of both extend to leases for years and estates for life only,” as the reason is the same with regard to fee rents, which are within the equity of the laws; for “ubi lex est specialis, et ratio ejus generalis, generaliter excipienda est.” 2 Inst. 43; Cro. Jac. 511; ,2 Roll. Ab. 47.

The law with regard to pretensed titles, has nothing to do with the case; because that, even as to lands, relates only to those the title to which is actually disputed by the tenant at the time of the grant; but here, no dispute, either as to the rent, or the land, had arisen. Besides, the case finds that Denny Martin Fairfa!x was lawfully seized, which, of itself, removes the objection.

The judgment of the district court is therefore to be reversed; and judgment entered for the appellant.  