The exceptions taken to the opinion of the Circuit Court in this case, may be divided into two parts:
1st. Those which respect the actual title of the plaintiffs.
2d. Those which respect the ability of the defendant to contest that title.
1st. The title of the plaintiffs.
They are the heirs of John Dunlap, who was a citizen of Pennsylvania, and claimed as the heir of James Dunlap, who died seised of the premises in the declaration mentioned, in the autumn of 1794. The defendants allege and prove that James Dunlap was an alien, and subject to the King of Great Britain, who came into the United States subsequent to the treaty of peace, and who died before the signature of the treaty of 1794, and whose title, therefore, is not protected by either of those treaties.
The Court having left the fact to the jury, their verdict has found that James Dunlap died previous to the signature of the treaty of 1794, and the question is, whether the Court erred in determining that this case was not either within the treaty of peace, or the treaty of 1794.
It has been decided that British subjects, though born before the revolution, are equally incapable with those born subsequent to that event, of inheriting or transmitting the inheritance of lands in this country. Consequently, the sole inquiry in this case respects the effect of the treaties between the United States and Great Britain.
The treaty of peace has always been considered as providing only for titles existing at the time; and as the title of James Dunlap was afterwards acquired it can derive no aid from that treaty.
James Dunlap, therefore, if he continued to be an alien, continued liable to all the disabilities of alienage, one of which is an incapacity to transmit lands to heirs. Consequently, when he died, the next of kin could take nothing by descent. The treaty of 1794, like that of 1783, provides only for existing rights. It does not give title. Had James conveyed, or devised the property to John, the title would have vested in him, subject to the right of the government to seize the land; and the treaty would have confirmed that title, so if the law would have vested the estate in him by descent. But as the fact is, he had no title, nothing on which the treaty could operate. It has been said that this Court has never supposed actual possession to be necessary to entitle a party to the benefit of the treaty. This is true. But the existence of title, at the time, has always been supposed necessary.
The plaintiffs also insisted that under the circumstances of this case, the jury might presume James Dunlap was a citizen.
The circumstances are the length of time which has intervened since his arrival in this country, and since his first acquisition of real estate, during which there have been no proceedings instituted under the laws of escheat and forfeiture.
The veight which might be allowed to this argument, had the property continued in the peaceable occupation of the heirs of James Dunlap, and had this presumption been required to sustain the title clothed with that possession, is, we think, diminished by the circumstance that the land was, soon after his death, claimed and occupied by a citizen of Kentucky as a purchaser. In such a state of things it is not surprising that no inquiries should be made into his citizenship, and that no person should feel disposed to intermeddle with the affair.
The alienage of James Dunlap being fully proved, and the laws of Virginia requiring, as indispensable to his citizenship, that he should take the oath of fidelity to the commonwealth, in a Court of record, of which the Clerk is directed to grant a certificate, we do not think that this fact, which, had it taken place, must appear on record, ought to be presumed, unless there were some other fact, such as holding an office of which citizens alone were capable, or which required an oath of fidelity, from which it might be inferred.
In favour of long possession, in favour of strong apparent equity, much may be presumed; but in a case where the presumption would defeat possession, where the equity is doubtful, where the parties rely upon strict law, Courts will be cautious how they lean in favour of presuming that which does not appear, and which might be shown by a record.
The Circuit Court has declined giving the instruction which was required; but, on this point, has given no counter instructon, and has assigned no reason for refusing that which was required. It may have been, that the presumption in favour of a deed from John Dunlap so entirely balances the presumption in favour of the citizenship of James, as to prevent the allowance of either.