1822.

Blight's Les

see

V.

lessee is not estopped." It is on principles of legal policy or moral honesty, and not of estoppel, that a lessee is not permitted to deny the estate of his lessor. The Court has some discretion in limiting the Rochester. rule, because, being adopted to promote the purposes of justice, it is not inflexible. It applies only to a person who enters as tenant, and never to one who enters and claims in his own right. It cannot apply as between vendor and vendee, and certainly not where the latter never received possession from the former.

2. As to the treaties of 1783, and 1794, it is the settled doctrine of this Court, that they were meant to provide only for titles legally existing at the time the treaties were signed, and not to titles subsequently acquired. It is true that it is not necessary that the parties should have an actual possession of seisin ; but it is necessary that the title should be legally vested in them at the time the treaty was made.'

Mr. Chief Justice MARSHALL delivered the opi- March 20th. nion of the Court.

The exceptions taken to the opinion of the Circuit Court in this case, may be divided into twe 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.

a Co. Litt. 47. b. Roll. Abr. 871.

Harden v. Fisher, 1 Wheat. Rep. 310.

1822.

Blight's Lee

see

v.

Construction

They are the heirs of John Dunlap, who was citizen of Pennsylvania, and claimed as the heir of James Dunlap, who died seised of the premises in Rochester. the declaration mentioned, in the autumn of 1794. The defendants allege and prove that James Dunlap treaties of 1783 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.

of the British

and 1794, as to

titles to land.

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 spects the effect of the treaties between the United States and Great Britain.

re

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.

1822.

see

V.

Rochester.

It does not give title. Had James conveyed, or de- Blight's Lesvised 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 weight 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.

1822.

see

V.

The alienage of James Dunlap being fully proved,

Blight's Les- and the laws of Virginia requiring, as indispensable to his citizenship, that he should take the oath of fiRochester. delity 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 re

cord.

The Circuit Court has declined giving the instruction which was required; but, on this point, has given no counter instruction, 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.

If James Dunlap could not be considered as a citizen at the time of his death, the plaintiffs have no title; and the only remaining question arising on the bill of exceptions, is, was the defendant restrained

on the principle of estoppel, or any other principle, from resisting their claim.

It is contended that he is so restrained, because John Dunlap sold to Hunter, and Hunter has conveyed to the present defendant.

a

It is very certain, that these sales do not create legal estoppel. The defendant has executed no deed to prevent him from averring and proving the truth of the case. If he is bound in law to admit a title which has no existence in reality, it is not on the doctrine of estoppel that he is bound. It is because, by receiving a conveyance of a title which is deduced from Dunlap, the moral policy of the law will not permit him to contest that title.

This principle originates in the relation between lessor and lessee, and so far as respects them is well established, and ought to be maintained. The title of the lessee is, in fact, the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his possession. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor, without disparaging his own, and he cannot set up the title of another, without violating that contract by which he obtained and holds possession; and breaking that faith which he has pledged, and the obligation of which is still continuing, and in full operation.