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1822.

The alienage of James Dunlap being fully proved,

d the l f Virginia iring, as indispensabl Blight, Les and the laws of virginia requiring, as indispensable

See w. Rochester.

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 re. quired 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 becautious 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 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 princi-
ple, from resisting their claim.
It is contended that he is so restrained, because
John Dunlap sold to Hunter, and Hunter has con-
veyed to the present defendant.
It is very certain, that these sales do not create a
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 re-
ceiving 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 owner-

ship 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 coutinuing, and in full operation.

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1822. In considering this subject, we ought to recollect,

too, the policy of the times in which this doctine ori

Bli-ht's Les- _ r J

see ginated. It may be traced back to the feudal teRochcster. nures, when the connexion between landlord and tenant, was much more intimate than it is at present: When the latter was bound to the former by ties not much less strict, nor not much less sacred, than those of allegiance itself.

The propriety of applying the doctrines between lessor and lessee to a vendor and vendee, may well be doubted.

The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become, by the sale, the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this ; nor is either the letter or spirit of the contract violated by it. The only controversy which ought to arise between him and the vendor, respects the payment of the purchase money. How far he may be bound to this by law, or by the obligations of good faith, is a question depending on all the circumstances of the case, and, in deciding it, all those circumstances are examinable.

If the vendor has actually made a conveyance, his title is extinguished in law as well as equity, and it will not be pretended that he can maintain an eject* 1822. ment. If he has sold, but has not conveyed, the con- ^J^^. tract of sale binds him to convey, unless it be condi- «* tional. If, after such a contract, he brings an eject- Rochester. ment for the land, he violates his own contract, unless the condition be broken by the vendee; and if it be, the vendor ought to show it.

In this case a sale by John Dunlap to Hunter is stated, and a conveyance from Hunter to Rochester, the defendant, is also stated, but that conveyance does not appear in the record. Whether it contains any reference to the title of Dunlap, or not, is not shown. The defendant then holds in his own right by a deed of conveyance which purports to pass the legal title. The plaintiffs show no title in themselves, but allege and prove that the title under which the defendant claims is derived from their ancestor. They therefore insist that the defendant is bound in good faith to admit this title, and surrender the premises to them.

But the sole principle on which this claim is founded is, that the defendant must trace his title up to their ancestor, and is bound therefore to admit it. But if the deed of the defendant does not refer to their ancestor, and the record does not convey this information, the defendant holds in opposition to the title of John Dunlap, or claims to have acquired that title. If he holds under an adversary title his right to contest that of Dunlap is admitted. If he claims under a sale from Dunlap, and Dunlap himself is compelled to aver that he does, then the plaintiffs themselves assert a title against this contract. Un1822. iess they show that it was conditional, and that the Blight's Lcs- condition is broken, they cannot, in the very act of f} disregarding it themselves, insist that it binds the deRochester, fendant in good faith to acknowledge a title which has no real existence.

Upon reason, then, we should think that the defendant in this case, under all its circumstances, is at liberty to controvert the title of the plaintiffs.

But it is contended that this question is settled iu Kentucky by authority. There are also several cases quoted from the decisions in New-York, which we have not had an opportunity of examining fully. Those we have considered are, we think, distinguishable from this in some of their circumstances, especially in this material one, that the vendor gave possession to the vendee. But the decisions of one State, though highly to be respected, are not authority in another, especially with respect to laud titles. In Phillips v. Rothwell, in 4 Bibb, 33. the defendant claimed under a conveyance from the tenant of the plaintiff. That case, therefore, was decided on the doctrine applicable to lessor or lessee. The case in 2 Marshall, 242. was the case of a purchaser who had not received a conveyance, and who was not allowed to set up an outstanding title in a third person. The report gives us only the opinion of the Court, not accompanied by astatementof the case, or the points made at the bar. We therefore cannot icll whether, in asserting his title, the vendor acted in opposition to his contract. We cannot say that the condition on which the sale might depend had not been broken. There is, too, a difference between set

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