GORDON v. KERR et al., 10 F. Cas. 801

WASHINGTON, Circuit Justice (charging jury). In the case of Gordon v. Holliday [Case No. 5,610], I entertained some doubts, whether “Harry” and “Henry” were the same name; my mind rather inclined- to the opinion that they were. I thought myself however authorized, in laying hold of a legislative declaration, that they were not the same names, and that a misnomer had taken place, sufficient to invalidate the attainder.

This opinion, in the present cause, has been combated by an argument not thought of, or used in the former, which is, that If there was in fact no misnomer, the attainder was complete, and the sale of Gordon’s estate under it so entirely valid, that the legislature could not, in 1783, defeat it directly, or by the declaration of an opinion, which was solely of a judicial nature. This objection, I suppose, is founded upon the constitution of the state, though it was not read, nor referred to. But be this as it may, even that constitution must yield to the treaty of peace, which is supreme. The fifth

article stipulates, that congress should earnestly recommend to the states, a revision of their confiscation laws, so as to render them consistent with justice and equity, &c. and should also recommend to them the restitution of confiscated estates. This was not considered as an idle provision, but was intended to be effectual; provided the different states, or any of them, felt disposed to comply with the recommendation. If the states thought proper to restore, their power to do it grew out of this treaty; and so far neutralized any

article of their constitution, which prohibited, in other cases, the exercise of such right. The state would no doubt feel itself compelled to make compensation to the purchasers, but their power to restore could not, I think, be questioned. If they could restore absolutely, they could do any other act short of that, and tending to better the situation of those whose estates had been confiscated; and of course, to declare that in this case a misnomer had taken place. I think that this law amounts to the granting a new trial, and the setting aside a former attainder.

As to the rights of the parties in this cause, this will depend upon the facts, which have been already stated. Upon them, the lessor of the plaintiff, appears with a regular and unexceptionable legal title to the land in question. It will not do, after this, for the defendant to rely upon his possession; but he must show a better title, either legal or equitable. When I say equitable, I speak in reference to the laws and usages of this state. If he rely upon an equitable title, it must be such as a court of equity would sustain. What is it?

A special warrant, dated in 1755, kept in his pocket till 1705; and then an ineffectual attempt made to survey it; which failing, we hear nothing further of it, or of Rankin’s pretensions, until the order given to Harris to survey it. The rule in this state, as it seemed agreed at the bar, is, that if a man, having a warrant, do not use due diligence to survey it, so as to afford notice to others, he loses his priority. We feel well disposed to adopt this rule, because it is highly reasonable.

I presume, however, that if, during the suspension, a third person, with notice of the warrant and its location, should survey the land, he would lose the benefit of his vigilance, in consequence of that notice; and for this reason it was, I suppose, that the notice of Morris in 1761, was so much relied upon by the defendants’ counsel. But there is nothing in that, even if the notice had been more precise, because notice to Mr. Peters, would not affect Gordon, who purchased without notice. 2 Fonb. 152. The delay of Rankin is attempted to be excused, on account of the Indian war.

You have heard what was the degree of danger, in surveying in this part of the country, after 1758; and you can determine on the validity of the excuse.''But, after the survey for Mr. Peters in 1762, what prevented Rankin from contesting his right to the land? This survey was returned in 1762. The agent of Rankin had express notice of it in 1765; yet no caveat was entered; no objections made; no complaint to the proper tribunal, of thé supposed misconduct of the deputy surveyor, in not executing the warrant in 1765.

The whole subject rests in profound quiet, and concealed from the light, until the year 1774, when an innocent man, not suspecting this or any other sleeping title to the land, pays £900, and obtains a grant. What kind of figure would this defendant make in a court of equity, with his dormant title, against a fair bona fide purchaser, without notice, and shielded by a legal title? If, then, I have stated the evidence in the cause truly, there can be no doubt that the title of the defendant, cannot prevail against that of the lessor of the plaintiff. Verdict for plaintiff.