
3 U.S. 425 (____)
3 Dall. 425
SIMS Lessee
versus
IRVINE.
Supreme Court of United States.

*456 The CHIEF JUSTICE, on the last day of the term, delivered the opinion of the court as follows:
ELLSWORTH Chief Justice.
It appears that William Douglass, for services rendered, acquired under the King's Proclamation of 1763, a right to 5000 acres of unappropriated land in America; which right he assigned to Charles Sims, the lessor of the Plaintiff below. And although by the terms of the proclamation, the personal application of Douglass was requisite to obtain a land warrant on the said right, yet the laws of Virginia, passed subsequent to her independence, dispensed with such personal application, and made a warrant issuable to the assignee, Sims, he being an inhabitant of that state on the 3d of May, 1779. A warrant he accordingly obtained, and the same duly located on Montour's Island, the land in question; which his warrant was more than sufficient to cover, and which, from its description as an island, was perfectly aparted and distinguished from all other land. By which means Sims acquired to the said island a complete equitable title, and one which needed only a patent of confirmation to render it a complete legal title. A confirmation of this equitable title, as effectual as that of any patent could have been, was afterwards comprised in the compact between Virginia and Pennsylvania, and in the ratification of the same by the legislative act of the latter. The terms therein of "reserve and confirmation" of the "rights" which had been previously acquired under Virginia, in the territory thereby relinquished to Pennsylvania, must, from the nature of the transaction, be expounded favorably for those rights, and so that titles, before substantially good, should not *457 after a change of jurisdiction, be defeated or questioned for formal defects.
It further appears, that Sims, since the said compact and ratification, has, without any laches that would prejudice his claim, obtained a legal survey of the said land under Pennsylvania. In which state, payment, or as in this case consideration passed, and a survey though unaccompanied by a patent, give a legal right of entry, which is sufficient in ejectment. Why they have been adjudged to give such right, whether from a defect of Chancery powers, or for other reasons of policy or justice, is not now material. The right once having become an established legal right, and having incorporated itself as such, with property and tenures, it remains a legal right notwithstanding any new distribution of judicial powers, and must be regarded by the common law courts of the United States, in Pennsylvania, as a rule of decision.
The JUDGMENT of the Circuit Court affirmed.
IREDELL,[*] Justice.
Though I concur with the other Judges of the Court in affirming the Judgment of the Circuit Court, yet as I differ from them in the reasons for affirmance, I think it proper to state my opinion particularly.
In order to do this with the greater distinctness, it is necessary that I should observe upon the nature of this title according to my ideas of it, from its origin to what may be deemed its consummation, at least for the purpose of maintaining this ejectment.
My observations, therefore, will be under the following heads of inquiry:
1st. Whether it sufficiently appears that William Douglas was entitled to a military right, such as it was, under the Proclamation of 1763.
2d. Whether the right of Douglas, in case he was so entitled, was assignable, under the Royal Government, or since.
3d. Whether the Lessor of the Plaintiff in the ejectment, had a title, and if any, of what nature it was, under the laws of Virginia.
4th. Whether he had any title, subsequent to the compact, under the laws of Pennsylvania.
5th. Whether if he had a title, it was such as was sufficient to maintain this ejectment.
*458 The first question is,
1. Whether it sufficiently appears that William Douglas was entitled to a military right, such as it was, under the Proclamation of 1763?
Though the finding be not altogether so correct as it might have been, yet I think it may be fairly inferred that William Douglas had all the requisites to entitle him to a military right under that Proclamation, especially as the Jury have said generally that the King gave to him the right in question by that Proclamation, which could not have been in fact true had any of the requisites been wanting, and though a general finding inconsistent with a particular one cannot stand, yet I am of opinion a particular finding consistent with a general one may.
The next question is,
1. Whether the right of Douglas was assignable under the Royal Government, or since?
The grant was general to all who were the objects of it, and required only evidence of proper service, and the usual steps towards, obtaining a grant under any of the then Provinces. The Royal faith was pledged, that in such a case a grant should issue. It was immaterial, at that time, in what province the grant was obtained, as all belonged equally to the Crown. The grant was for meritorious services already performed, and therefore it was an interest, though in some degree indefinite in its nature, sanctioned by every principle of moral obligation, and such as the party entitled might, on the most solemn principles of public justice, confidently demand. Upon a large scale, the Crown was certainly a trustee for all those persons to whom its faith was pledged; and, therefore, so far as no particular prerogative of the Crown interfered, it was rational to consider it in the light of any other trust. It has been doubtful whether the Crown could in any case be a trustee, so as to be the object of any municipal decision, but the law could never presume (however the fact may be) that the Crown would not faithfully perform any trust belonging to it. The only difference between that and a private trust, is, that the latter is clearly enforcible by a Court of Equity; the former perhaps must be left to the conscience of the Crown itself. But this makes no difference in the nature of the interest. If this had been a private trust, it would at least have amounted to what in Equity is called a possibility, and it has been long settled that a possibility is assignable in Equity for a valuable consideration. I fee no reason why that principle cannot apply here. The necessity of a personal application was undoubtedly indispensible under the Royal government; but the two things are, in my opinion, perfectly compatible. Suppose such an assignment *459 had been made, a personal application was still necessary, and very probably for the judicious reasons assigned at the Bar; but after the grant, obtained on such personal application, if the interest had been fairly assigned before, the assignee would have been entitled to a conveyance. If none had been made, which would have been an acknowledgment of the fairness of the transaction, Chancery only could have been applied to, to compel a conveyance. The assignor or his heir would then have had to answer on oath, and an examination of all particulars might have been made, after which, if the Court had entertained the least doubt of the fairness of the transaction, they would not have ordered a conveyance. This would be a sufficient guard against fraud. But the assignment previous to an actual grant might have been necessary even to save an officer from starving. How hard would have been his condition, if he could have made no immediate use of a bounty of the Crown, expressly intended as a provision for him, but which circumstances might prevent his receiving for years?
Thus the case stood, as I conceive, under the Royal government. By the Revolution, the circumstances of it were, in some degree, changed, but not so as, in my opinion, materially to alter the nature of the title in this respect. The duty of the Crown, substantially, devolved on the several States, who became possessed of the territory formerly belonging wholly to the Crown; but as it might be an unreasonable thing to burden any one State with the whole of these provisions, some modification of the title might be expected so as to prevent this injury. This, however, does not seem to afford any reason why it should not remain an assignable interest, subject to the restriction I mentioned before, in case a personal application was still insisted upon, which it was undoubtedly optional in the States to require, or not. I therefore am of opinion, that the interest still remained assignable, subject only to such regulations as each State might think proper to require.
The next subject of enquiry is,
3d. Whether the Lessor of the Plaintiff in the ejectment had a title, and if any, of what nature it was, under the laws of Virginia?
I confess I have had great difficulty in construing the two Virginia acts, of May, and October, 1779, and if the latter act had admitted of such a construction that I could, without absurdity or manifest injustice have confined the words "or assigns" in that act, to mean only the heirs or assigns of those specially named in the former, I should undoubtedly have preferred that construction; because in the last act of May, 1779, the Virginia Legislature expressly designated the objects, for whom they *460 meant to provide; and whatever I might think of that provision (though I am far from thinking it an unjust one) I should deem it unwarranted to extend it to any others by construction of a subsequent law, without plain words of extension, unless there was an irresistible implication to authorise it. Such an implication, I think, exists here. The first act specifies the various objects of its provision: 1st. Those who had obtained a Warrant from the Governor of Virginia, under the former government. 2d. Where the service was performed by an inhabitant of Virginia. 3d. Where the service was performed in some regiment or corps actually raised in Virginia. The act of October, 1779 introduces a new provision for some persons of other, viz. a residence in Virginia at the passing of the former act (the 3d of May, 1779,) but they expressly except from the operation of this provision those who had obtained warrants under the former government, and those who had performed military service in some regiment or corps actually raised in Virginia, and had served under the circumstances particularly described in the act. They also except persons who had obtained a title under any former warrant. They do not, however, except in any manner one description of persons, who were provided for in the former law, viz. persons who were inhabitants of Virginia, and had performed military service in some other than Virginia regiment or corps, unless they or some persons claiming under them had previously obtained a warrant for it. But the act affords no indication from which we have a right to infer, that the Legislature meant to repeal any of the provisions in the former law; and if they did not, then upon the construction of the Council for the Plaintiff in Error, the provision, as to the persons I have last mentioned, in plain English would stand thus: "We are willing to reward the services "of any of the inhabitants of our own particular state, "when under the Royal government, by giving full effect to "the Royal proclamation, by which the faith of the former "government was pledged, provided the person, his heirs, or "assigns, actually resided in Virginia on the 3d of May, 1779. "But if such person moved out of this State before that day, or "died and left heirs or assigns, who either never resided in Virginia, "or did not actually reside thereon the auspicious 3d of "May, 1779, he, she, or they, shall receive nothing for such service." "Such a provision would undoubtedly be highly rediculous, for the grant under the proclamation was for services actually past, services of a highly meritorious nature, the risque of life, and sacrifice of private case, by entering into the army at a critical period, for the defence of their country; and to such persons certainly no additional merit could attach by a *461 residence in Virginia on the 3d of May, 1779. I therefore am compelled, upon principles of respect to the Legislature, to abandon this construction; and then there remains no other but to suppose, that they meant to provide by implication for a new description of persons (though under negative, informal, and incorrect words,) viz. persons who had fairly obtained titles under any military grant, though not of the special description before enumerated, if such person, his heirs, or assigns, actually resided in Virginia on the 3d of May 1779. Willing, in short, to confirm all fair purchases made by permanent, not occasional, residents in Virginia, (of which the residence at that time should be a test) when they might innocently have supposed, either that Virginia was bound to provide for all military rights presented, or would be disposed upon a large and liberal scale to do so, and had thus laid out their money from a kind of indefinite confidence in the future conduct of their own Legislature: And the word "hereafter" that has been commented upon (in the 3d section. of the act of the 3d. of May, 1779,) and the express saving in the act of October, 1779, of all titles under warrants formerly issued, independent of the saving of titles under warrants from the former government, seem strongly to favour this construction. By construing the act in this manner, though some difficulties yet remain, they are, in my opinion, fewer than upon the other construction; and as they are more consistent with equity, justice, and common sense, I deem it my duty as a Judge, to support the construction which will tolerate these, in preference to one which is attended with greater difficulties, and accompanied with absurdity and injustice: especially, as that construction will make both acts consistent in their main objects, and the other (without any indication from the apparent meaning of the Legislature) would amount to an express repeal of an important provision; and nearly in effect revoke a grant actually made, which, if within the competence of a Legislature, is undoubtedly one of the most odious acts of its power, and which nothing but absolute necessity should force us to say they intended.
The title, therefore, so far, under the laws of Virginia, I think was a vested right. But it seems to me now material to enquire, whether the title under the laws of Virginia was complete or incomplete. It is admitted, that a patent was regularly necessary to complete the title, even had a survey been made, and it is at least doubtful whether a warrant and survey would have given any legal right of possession at all. But in this case, it is contended, a survey was not necessary, for two reasons: I. Because the location of an island was certain, and the whole island would not exceed the quantity he was entitled to. *462 2. Because no money was to have been paid upon it. These reasons do not satisfy me that a survey was unnecessary. A survey I consider in all instances to be highly useful, in order that it may be officially ascertained, and officially known, not only what land in particular is taken up, but also its exact quantity, so far as it is material to specify it, for the information of the public, from whom the grant is to be obtained, as well as that of any individual who may have interfering claims or pretensions. The private knowledge of a few particular persons who may know the spot thoroughly, is by no means equal to the authentic information which an actual survey, a regular report, and a correct record, can convey; and the instances are so very few, where exact information can otherwise be obtained, that there is no occasion for the sake of those to make an exception: It would do no good, and might lead to endless difficulties. I think, therefore, the necessity of a survey ought to be deemed general and indispensible, and there being none in this case previous to the compact made with Pennsylvania, the title so far was incomplete. But I admit, had a survey been unnecessary, and had such steps been taken in Virginia as would, of course, have intitled the Defendant in error to a patent, then the compact and the act of confirmation in consequence might have been deemed a complete and perfect assurance of it, and as effectual as if a patent had been actually granted before the compact under the laws of Virginia.
With respect to the payment of £.40. it is clear to me, that as that was meant as full purchase money for land, to which the person who entered had no right before, it never can apply to a case where the grant was for service already performed, unless the Legislature had wanted both common sense and common honesty. I have not hesitated a moment to reject that construction, the words in no manner requiring it, and easily admitting of the construction given by the counsel for the Defendant in error.
The finding in this case, I think, sufficiently establishes a relinquishment of the Indian title previous to the year 1779, so as to authorize an entry and location in the river Ohio, at the times the entry and location on behalf of the Defendant in error took place, without a violation of any duty either to a particular State or to the United States.
I come now to the next head of inquiry,
4. Whether the Defendant in error had any title, subsequent to the compact under the laws of Pennsylvania?
I do not consider that this compact, and the act in confirmation of it, immediately converted all inchoate and imperfect rights under Virginia into absolute and perfect ones under *463 Pennsylvania, but that the intention was, such as the title was under Virginia, it should substantially be under Pennsylvania, in preference to any younger right that might have been obtained in any manner under Pennsylvania. If the manner of proceeding on both sides was the same, then the Virginia claimant had nothing to do, but to proceed under the laws of the latter, as if his original title had been obtained from Pennsylvania. If the manner of proceeding in both States had been different, then I should have supposed it would have been proper for Pennsylvania to pass a new law adequate to this new case, that the faith of the State might have been duly observed. But I conceive under both States a survey was indispensible, the same reasons which I have urged on this subject, in considering the case of the Virginia right, applying equally to both States. The survey that was accordingly had under the State of Pennsylvania I think was a valid one, notwithstanding the objection as to the bed of the river, for as the law is general, (such at least it appears to me) that where two countries, or two counties, border on a navigable river, the middle of the bed of the river is the boundary line, I see nothing in this case to prove it an exception, and consequently the survey appears to have been made by the proper authority. With regard to the objection that in the 9th finding it is stated, that the Governor of Virginia transmitted in 1784 a just and true lift of entries made under the authority of Virginia in the disputed territory, in which list the island in question is not comprehended, and therefore the verdict impliedly excludes it, I answer, 1st, If the Governor had or had not transmitted a perfect list, this could not have deprived any party really entitled of shewing a title which had been omitted, either designedly (though that could not be presumed, but I state it as the strongest case) or inadvertently, on the part of the Governor, where at least an adverse claimant under Pennsylvania was not prejudiced by such omission, but had early and sufficient notice of the prior right, before he had completed his own. 2d. It may be a true list, so far as it goes, but not perfect for want of a complete knowledge of all particulars, some of which might have been omitted to be ascertained in the usual and proper manner. 3d. The implication in this case cannot have the effect contended for, because the 10th finding refers to that lift, as including the entry and location of the Defendant in error, and the 4th finding declares, that two Deputy Surveyors under the Surveyor General of Pennsylvania did in 1785 receive from the Surveyor General's office, a list of entries made under the authority of Virginia, which list included the entry for the land in the declaration mentioned.
The survey being in my opinion good, though it was subsequent *464 to the grant to the Plaintiff in error; shall be deemed to relate to the time of taking out the warrant, not only in consequence of the compact, which secured all prior rights of Virginia, and the act in confirmation of it, but also on account of the express saving of all prior rights in the grant to the Plaintiff in error by the commonwealth of Pennsylvania, who seem to have guarded with solicitude against any supposed breach of public faith, and therefore it is immaterial to enquire, what would have been the case had Pennsylvania expressly violated it. But where a Legislature has constitutional authority to pass any law, I can conceive a manifest distinction between right and power; between the obligation on the part of the Legislature, upon principles of morality, to give effect to a solemn compact, and their, in fact, making a law in violation of it, which it is the duty of the Courts to obey. The Legislature is restricted indeed in this particular by the constitution of the United States; and a treaty of the United States is, by its own authority, de facto, as well as morally, binding, while it continues in force, because it shall be the supreme law of the land. But until this constitution did pass, I should doubt very much, whether if the Legislature had actually violated the compact, the Court could here set up the compact against the law, upon principles which I have stated at large in my argument on the subject of the British debts, and to which I beg leave to refer, as it is now publishing in Mr. Dallas's Reports.[*] I say this only incidentally, on account of observations on this subject at the bar, in which I by no means acquiesce.
The warrant and survey being thus by me deemed complete and unexceptionable, under the commonwealth of Pennsylvania, the only remaining enquiry is,
5. Whether if the Defendant in error had a title, it was such as was sufficient to maintain this ejectment?
Two objections are stated under this head.
1. That the title, such as it is, is only an equitable, not a legal one, and therefore will not maintain an ejectment.
2. That it is not brought within proper time, but is barred by the Statute of limitations.
As to the first objection, did this title stand merely as an equitable one, I should strongly incline against it, if not deem it altogether insufficient. It is of infinite moment, in my opinion, that principles of law and equity should not be confounded, otherwise inextricable confusion will arise; neither will be properly understood; and instead of both being administered with useful guards, which the policy of each system has devised against abuse, an heterogeneous mass of principles, not intended to effort with each other, will be blended together, and the substance *465 of justice will soon follow the forms calculated to secure it. I totally reject all the modern cases introduced by Lord Mansfield, and supported by some other Judges, but lately, wisely, as I conceive, discountenanced by the present Court of King's Bench, of taking notice of a Cestui que trust at all in any other right than as holding in fact possession, with the concurrence of the legal Trustee. So far, consistent with legal principles, a Court may go, but not, as I conceive, one step further, and that it violates the most important principles of the common law to consider a Cestui que trust as having an iota of legal right against the Trustee himself. Whatever excuse a Court may have for doing this, when the want of a Court of equity may urge them to procure substantial justice, by a deviation from legal strictness as to form, I should hesitate long, before I should deem myself warranted in assenting to such a practice, when both powers are vested in the very same Court, but each has different modes of proceeding prescribed to it. But I think we are relieved from any dilemma of this kind, by strong and unequivocal declarations of highly respectable gentlemen of long experience in this State, that a warrant and survey, where no money remained to be paid, and a patent was only to ascertain that all previous requisites had been complied with, has been uniformly deemed a legal title, as opposed to an equitable one; and has all the consequences as such, even as to Dower, which affords a strong presumption in favor of the supposed legal title, for it has been so long held (though I think erroneously at first) that there should be no Dower of a trust estate, that perhaps no Judge would be warranted in a Court of Chancery in allowing it. Whether this opinion was originally right or not, yet having been the ground of many titles, it would be improper in the Court to shake it. I am not certain, also, but it may properly be considered, that the proprietor under a warrant and survey (according to long usage) is at least in the nature of a tenant at will to the public, and as such has a right of possession against all others, except some person having a better right, claiming under the public, which better right does not, for the reasons I have given, exist in this case, in the Plaintiff in error. This point, however, I merely intimate, it not being necessary to deliver an opinion upon it.
Another circumstance has occurred to me, which I suggest with diffidence, as it was not spoken to at the bar, that though the compact and confirming act did not render a survey unnecessary, yet when a survey was made, it being a right derived from compact alone, the title ought to stand on that ground alone, and not depend on a patent, which imports a grant by the *466 State, at its own discretion, of property of its own, and seems to imply that the State is the sole agent in the conveyance of the title.
With respect to the objection from the statute of limitations, it is sufficient to say, that that act, in my mind, clearly contemplates other objects, and neither in its letter, or spirit, is to be applied to this new and peculiar case; but admitting that it did, the facts in this case do not come within the provisions of it, there appearing to have been no such laches as the act contemplated to prevent.
NOTES
[*]  The CHIEF JUSTICE observed, at the conclusion of the opinion of the Court, that Judge IREDELL (whose indisposition prevented his attendance) concurred in the result, but for reasons, in some respects, different from those which had been assigned. As I have since been favored with a copy of Judge IREDELL's notes, I should think the report of the case imperfect without publishing them.
[*]  Ant. p. 256.
