Gordon v. Kerr

Oct 15, 1806
Versions:10 F. Cas. 801
1 Wash. C. C. 322
WASHINGTON, Circuit Justice

(сharging 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 howevеr authorized, in laying hold of a legislative declaration, that they were not the same namеs, 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 suрpose, 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 revisiоn of their confiscation laws, so as to render them consistent with justice and equity, &c. and should аlso recommend to them the restitution of confiscated estates. This was not considerеd as an idle provision, but was intended to be effectual; provided the different states, or аny of them, felt disposed to comply with the recommendation. If the states thought propеr to restore, their power to do it grew out of this treaty; and so far neutralized any articlе 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 purchasеrs, but their power to restore could not, I think, be questioned. If they could restore absolutely, thеy 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 hаve been already stated. Upon them, the lessor of the plaintiff, appears with a rеgular 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 аn equitable title, it must *803be 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 furthеr 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, bеcause it is highly reasonable. I presume, however, that if, during the suspension, a third person, with notiсe of the warrant and its location, should survey the land, he would lose the benefit of his vigilancе, in consequence of that notice; and for this reason it was, I suppose, that the notiсe 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 еxcused, ‍‌​‌‌​​​​‌​​‌‌‌‌‌‌​‌‌​​​‌‌​​‌​‌​​‌‌‌‌​​‌‌​​‌​​‌‌​‍on account of the Indian war. You have heard what was the degree of dangеr, 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 objeсtions 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 sleeрing title to the land, pays £900, and obtains a grant. What kind of figure would this defendant make in a court of еquity, 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.