Jackson ex dem. Robinson against Joseph Munson; Same against Waterman; Same against William Munson, 1 Johns. 277

Thompson, J. Judgment having been recovered against the defendant in this case, application is now made under the statute of this state relative to the sale of confiscated estates, passed the 12th of May, 1784, for stay of execution, Until compensation be made for the improvements, according to the provisions of the first

section of the act. The only question presented for decision is, whether the act call 7 H ., / . . , . . ’ be considered as applying to this case r i he premises m question were sold by the commissioners of forfeitures, as * • , , , , part of the estate of Margaret Johnson, who had been convicted under the aforesaid act for adhering to the enemy. The conviction, however, was not until January, 1783, and subsequent to the provisional articles of peace between the United States and Great-Britain, which" were signed on the 30th of November, 1782.

Unless the provisions in this treaty take the case out of the statute, there can •be no doubt that the defendant must be compensated for his •improvements before he can be turned out of possession. I ■am inclined, however, to think, that the operation, of the ■treaty will be to prevent the application of the statute to this case. The 6th

article declares, “ that there shall be no -future confiscations made, nor any prosecutions commenced, against any person or persons, for or by reason of the ■ part which.he or they may have taken in the present’war, and that no person shall on that account, suffer any future ■Joss or damage.” All confiscations, then, after the signing of the treaty, must be considered null and void. The proceedings against Margaret Johnson were commenced prior •to, But no judgment or conviction obtained until after the signing of the treaty. What then is to be considered the .date of the confiscation ?

The act of attainder, passed the •22d of October, 1779, is explicit on that subject. It declares that the forfeitures shall be- deemed to have accrued at the time of conviction. No right or title to the land could be vested in the people of this state until conviction, and if such conviction was absolutely void, the people never acquired any title, nor in any manner whatever succeeded to the rights of Margaret Johnson. We must consider the lessors of the plaintiff, as standing in the place of Margaret Johnson, and entitled to all the benefits of the treaty of which she could have availed herself.

The crime for which she stood indicted and upon which the forfeiture was to accrue, was for adhering to the enemies of this state. The

article of the treaty, above referred to, declares that no person snail on that account suffer any future loss or damage • i • ,T . ^ ^ , , either in person or property. • Had Miar gar et Johnson been the plaintiff in this cause, and it should be imposed upon her to pay for the improvements before she could have the. effeet of the judgment, it certainly would be a loss or damage, on account of the part she had taken in the war, or for adhering to the enemy, because, it would be a compensation required only in cases where there is a recovery of land sold as forfeited, on account of the very crime charged against her, and contrary to the general rule of law, on a recovery in an action of ejectment.

My opinion, therefore, is, that the treaty prevents the application of the statute to the present case, and that the plaintiff is entitled to the effect of his judgment, without making any compensation for the improvements. Kent, C. J. declared himself to be of the same opinion. Livingston, J. In August Term last, we gave judgment for the plaintiff, because the conviction of Margaret Johnson, under whom he claims, took place after signing the preliminaries of peace, between Great Britain and the United States, and was, therefore, void.

An application is now made to stay a writ of possession, until the defendant be paid for his improvements, on a valuation to be made, agreeably to the first

section of the act for the speedy sale of confiscated estates, passed 12th May, 1784, This motion is opposed, on the ground that the attainder, having been determined to be illegal, it would be contrary to the treaty of peace, to throw any obstacle in the way of recovering possession of the premises. Were the treaty susceptible of this construction, or were it even a doubtful case, I should not interfere, but let a habere facias possessionem go as in ordinary cases. But there is no article, to which it is necessary to give this intepretation.—The fifth and sixth articles only have been referred to. The fifth

article embraces two descriptions of persons ; those whose estates had been confiscated, and such as had demands against the property. In favour of the first, congress were to recommend certain measures to the legis* • jatures 0£ ijjg respective states ; and as to the other, it is expressly agreed, that they shall meet with no lawful impe- .. / ° . r , . . . , . diment in the prosecution oí their just rights, i he case oi the lessors of the plaintiff is evidently not embraced by this article.

If Margaret y ohnsords estate had been confiscated, she would have been included in the recommendatory part of the article. It is equally clear, that claiming the land itself, and not merely a demand against it, either by debt, marriage, settlement, or otherwise, the other member of the

article does not apply to her. The sixth

article stipulates, “ That there shall be no fu- “ ture confiscation, by reason of the part which any one “ may have taken in the war ; and that no one, on that ac- “ count, shall suffer any future loss or damage in his person “ or property, and that those who may be in confinement on “ such charges, at the time of the ratification of the treaty “ in America, shall be immediately set at liberty, and the 51 prosecutions so commenced be discontinued.” The only and obvious meaning of this provision is, that no more property shall be confiscated, and that all prosecutions for political offences shall cease.

There is nothing then in the treaty, to deprive the legislature of the right of providing by a general act, for the indemnification of those who had, under the sanction of a title derived from the public, made valuable improvements on lands. Such a regulation was equitable, and necessary to prevent great injustice. It could not be right, that those who had put expensive buildings on real estates, under what they conceived a bona fide title, should lose them on eviction, or that they should be reimbursed by the state for them.

It was more natural, and more consonant to equity, when the mistake was discovered, that the owner of the soil to whom the improvements would belong, and to whom they might be worth many thousand pounds, should make a reasonable compensation for them. This was not exposing him to a further loss of property, on account of the part he had taken in the war, but only asking him to pay for what, until such satisfaction was made, he could not m conscience claim as his own, that is, for build- * . , ings erected, or valuable improvements made by others.— This was giving him a quid pro quo.

My opinion, therefore, is, that the writ of possession be stayed, until the value of the improvements made by the defendant, be aseertained, and he be satisfied for the same. Tompkins, J. was of the same opinion. Spencer, J. Having been formerly concerned for the defendant as attorney-general in this cause, I did not intend to have given any opinion; but the other judges being equally divided, and in compliance with their wishes, I am induced to say, that I concur in the opinion just delivered by Mr. Justice Livingston. Rule granted.