Den on the several Demises of Robinson v. Barfield, 6 N.C. 391, 2 Mur. 391 (1818)

July 1818 · Supreme Court of North Carolina

6 N.C. 391, 2 Mur. 391

Den on the several Demises of Robinson and others, v. Barfield.

~From Bladen.

The deed of a feme covert, without a private examination, according-to the act of 1751, is amere nullity and void ; and, to give validity to her deed, it must appear that her private examination has been had, pursuant to the act; if it appear by the Clerk’s certificate that the “ deed was acknowledged in open Court and ordered to be registered,” the Court will not presume a private examination from such certificate.

An act of Assembly declaring that certain deeds which are not exe cuted according to law, shall be held, deemed and taken to be firm and effectual in law, for the conveyance of the lands mentioned in them, is unconstitutional, being in violation of the 4th section of the Bill of Eights, which declares the Legislative, Executive, and Judicial powers of Government, to be distinct.

Case agreed.-William Bart~am, in or about the year 1769, died intestate, seised in fee-simple of divevs lands in Bladen County, and leaving one son, William, and two daughters, Mary and Sarah~ William died~intestate and without issue, in the year 1771, on which, Ma-ry and Sarah became seised of the lands in coparcenary. Afterwards Mary intermarried with Thomas Robinson~ and Sarah with Thomas Brown. Mr. and Mrs. Robinson, and Mr. and Mrs. Brown, made partition o£ part of the lands, and on the 8th February, 1776, mutually executed Deeds to each other, sufficient in form to convey a joint estate in fee-simple; but (here is no evidence that either Mrs. Robison or Mrs. Brown was privately examined as required by the Act of Assembly. The land described in the declaration is comprehended in the deed from Mr. and Mrs. Robison to Mr. and Mrs. Brown $ on which deed is the following endorsement, to-wit, “ August term, 1778; this deed acknowledged in open Court and ordered to be registered.” — . On the.25th March, 1779, Mrs. Brown joined with her husband in a deed, and conveyed the premises to George Lucas, and on the day following, Lucas conveyed the land to the said Thomas Brown. Mrs. Brown was never privately examined as to her free consent in making the deed to Lucas, in the manner prescribed by the Act of Assembly: but a short time previous to her death she was asked, on examination by the subscribing witnesses to the deed, as to the fact, when she acknowledged to them, that the deed had been executed at her voluntary instance and of her o wn accord; which the witnesses testified inwr iting on the deed the same 25th of March, 1779. After her death, her husband General Thomas Brown, applied to the General Assembly, and in the year 1788, an act was passed confirming his right to the land, and declaring that he and his heirs should hold the same in fee-simple; which act so far as itis consistent with the above facts, is made a part of this case. Mrs. Brown had three children, two of whom died in her life time without issue. The other, named Elizabeth, died afterwards in the life-time of her father; intestate and without issue — on the 4th day of June, 1796, after the death of Sarah Brown and Elizabeth Brown, General Brown executed a deed to Stephen Bar-field for the same land: Stephen Barfield afterwards conveyed to Allen Barfield, the Defendant: the Barfields or one of them, possessed the land constantly since the 4th June, 1796 — Gen. Brown died on the 22d November 1814, and this suit was brought in August 1815. The lessors of the Plaintiff are the heirs at law of Mary Robi-son, and also the heirs at law of Elizabeth Brown, who survived her mother, but died in the life-time of her father.

Murphey, for the Defendant.

This casewill be considered, 1st. under the deed made hy Thomas Robison and Mary his wife, to Thomas Brown and Sarah his wife: and 2d. under the act of Assembly passed in the year 1788, to confirm Thomas Brown’s title.

1st. The lessors of the Plaintiff, are the heirs at law of Mary Robison. If Mary Robison could not recover the lands, her heirs cannot, as they claim through her, and cannot be in any better situation that she was. Mary Robison, with her husband Thomas Robison, conveyed the lands in question to Thomas Brown and Sarah his wife, by deed containing the usual covenants of warranty. What is the effect of tiiis deed ? It was intended by the parties to make partition ; but in considering the effect of thedeed, thelaw will regard Thomas Brown and Sarah his wife as purchasers; as deriving the estate from Thomas Robison and Mary his wife. How then does the deed operate as to Thomas Brown and wife ? — It must operate as between the parties, in the same way with a deed made to Thomas Brown and wife by personsseis-ed of the entire estate in the lands; that is, it gives to Thomas Brown and wife an estate which necessarily survives to the longest liver: as against Mary Robison they are seised of the entirety, “ which neither the husband nor wife can dispose of without the assent of the other, but the whole must remain to the survivor.” This is not a mere deed of partition ; for why is there a clause of warranty, and 'why is that warranty joint to the husband and the wife. Thomas Robison and Mary his wife |iave therefore elected to make this a deed of partition and a deed for other purposes ; and as to these other pur-poscs s[ia¡} bind them as well as for the purposes of partition — If then Mary Robison were alive and wore the lessor of the Plaintiff in this ejectment $ coukl she recover against her deed ? She has made a deed which gives to Tilomas Brown, by operation of law, the entire estate in the lands in the event of his surviving his wife; he has survived her, and Mary Robison is estopped to claim against her deed. If she could not recover, her heirs cannot; they are privies in estate, and have to claim through her; the estoppel binds them as well as her, and her warranty bars them.

If therefore this deed has been legally proved and registered, there seems to be an end of the question. This depends upon the construction of the endorsement made on this deed by the Clerk of Bladen County Court. The case sets forth that “there is no evidence that Mrs, Ro-bison was ever privily examined as required by the act of Assembly ; but it also sets forth “ Íhat it appears by the endorsement on the deed, that at August term 1778, of Bladen County Court, this deed was acknowledged in open Court, and ordered to be registered.” The Defendant contends that this endorsement is legal evidence of the privy examination of the wife ; is legal evidence that the acknowledgment of the deed by the grantors was made in such mode and form as authorised the Court to order the deed to be registered — The act of 1751, ch. 3, declares “that all conveyances in writing, and sealed by husband and wife, for any lands, and by them personally acknowledged before the Chief Justice, or in the Court of the county where the land lieth, the wife being first privily examined, before the Chief Justice, or some member of the County Court appointed by the said Court for that purpose, whether she doth voluntarily assent thereto, and registered according to the directions of the laws of this province, shall be as valid in law to convey all the estate and title which such wife may have or shall have in any lands, &c.” — Before the personal acknow-lodgment of the deed in open Court, the wife must be privily examined by some member of the Court appointed for that purpose, whether she doth voluntarily assent to such acknowledgment, upon the report of this mein her, the Court either receives the acknowledgment of the wife and orders the deed to be registered, or refuses to receive her acknowledgment — If they do receive her acknowledgment in open Court, is it not legal evidence, that they had been informed in the jumper way that she voluntarily assented thereto ? The Court is not to receive her acknowledgment, nor make an order for the registration of the deed, until they are informed by one of their members appointed for that purjiosc, that she, upon a privy examination, docs voluntarily assent to make such acknowledgment. The words of the act, “voluntarily assent thereto,” can mean nothing else, than voluntarily assenting to acknowledge the execution of the deed in ojien Court: and this privy examination must always precede her acknowledgment in open Court, and the receiving of her acknowledgment in open Court, is evidence of her privy examination : for the Court must he presumed in tiiis, and in all similar cases, to have done what it was their duty to do ; and without this presumption, one half of the acts of judicial tribunals would be of no avail. It is a rule subject to no exception, that where the law either permits or directs a thing to be done, and prescribes the form ami mode in which it shall be done, that the record “that the thing is done,” necessarily implies that it has been done in the form and mode prescribed : and as to matters of substance incidental to the main act tobe done, the like presumptiou arises; under the act for emancipating slaves, tiie County Court are empowered to emancipate for meritorious services only : yet if the record shew, that the Court have cman-cipated a slave, and shew nothing more, the presumption irresistibly arises, that it was for meritorious services, because the Courtis to emancipate for them only. So wjrespect to feme-coverts, the Courtis to receive their acknowledgment of their deeds only after it appears to them by a privy examination that they voluntarily assent to make such acknowledgment; and if they do receive their acknowledgment in open Court, and that appears of record, the legal presumption is irresistible, that the feme-coverts, had, upon a privy examination, voluntarily ..assented to make such acknowledgment — In all aliena-tions by fine or common recovery, by husband and wife, the common law requires the wife to be privily examined ; yet in all instances her assent is presumed, for the record does not shew that siie has been privily examined. As she ought to be examined upon the fine and the recovery, the law presumes, where the fine has been levied or the common recovery suffered by the husband and wife, that she has been privily examined : and in every case of a fine and common recovery by husband and wife, ibis presumption exists,* but in each, the law requires that the wife shall be examined by the justices, and yet the record does not set forth her privy examination — Co. Lit. 353, b. Com. Dig. Baron and Feme, G. 1. — G. 2.— In these cases, to what point is the wife privily examined ? — To this only, whether she be willing to levy the fine or suffer the recovery. So under our act of Assembly, “ whether she voluntarily assent to acknowledge her deed in open Court” — As the judgment of the Court upon the fine or in tiie recovery, presumes her previous privy examination, so is her like examination presumed under our act of Assembly, where the Court receives her acknowledgment and orders her deed to be registered.— This presumption or intendment is carried so far, “ that a fine by husband and wife binds the wife, though the uses are declared by the husband alone; for the assent of the wife shall be intended, if her dissent does not appear.” — 2 Co. 57, Com. Dig. Baron and Feme, G. Í.— It may bo further observed, that the forms of proceeding in levying a fine and those under our acts of Assembly are in substance precisely the same. In a fine, the cog-nizors acknowledge that the lands in question are the right of the Complainant. — 2 Bl. Com. 354. “ If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.” — Id. 355. Her acknowledgment is then made in open Court and becomes matter of record. But her privy examination is not even mentioned upon the record, nor is there any proof of it, except the presumption arising from her acknowledgment in open Court. Mr. Blackstone, in the appendix to the second volume of his Commentaries, has given the record of “ a fine of lands sur cognizance de Droit, &c.” In no part of this record is the privy examination of the feme-covert mentioned, nor is it mentioned in any record of a fine to be found in books of precedents. But the record sets forth that in open Court, or before a Judge, or before Commissioners acting under a JJedimus potesta-tem, the feme-covert acknowledged the lands to be the right of the cognizee. — Does not our act of Assembly require the same things to be done, which the common law requires ? The wife is to be first privily examined, whether she doth voluntarily assent to acknowledge her deed in open Court, and then in open Court she makes the acknowledgment. What then ought the record to set forth ? Surely nothing more than “ that in open Court she acknowledged her deed.” — In the present case, the record does set forth that fact; and that upon the acknowledgment of the deed in open Court, the Court ordered it to be registered — It is true that a practice prevails of certifying that the wife was privily examined ; but this practice is no more evidence of the law, than another practice which prevails upon the same subject, and that is, not to take the acknowledgment of the wife, in open Court at all,, nor to certify it, but rely exclusively upon her privy examination.

Sndly. But if the acknowledgment of the deed by Thomas jFiobison and Mary his wife in open Court, he deemed insufficient to make it binding upon Mary Robison and her heirs, is the Defendant protected against their claim by the deed of Thomas Browu and Sarah his wife to George Lucas, aided by the act of 1788?^* As Sarah Brown died before she was privily examined as to the execution of this deed, either by a Judge, by the County Court or by commissions, it is clear the Defendant cannot (at law) at least avail himself of this deed, unless by the aid of the act of 1788. So the question upon this part of the case will he, does this act enable Thomas 1 Brown and those claiming under him to avail themselves Qj> ^|g ¿ee¿ an(] ¿[efeat thereby the claim of the lessors of the Plaintiff?

In support of the affirmative of this question, it may be observed, that as to conveyances by feme-coverts, the object of the common law as well as of our statutes upon the subject, is to ascertain whether they voluntarily assent to make such conveyances. The common law has made the customary proceedings in a fine or in a common recovery, evidence of this voluntary assent j our statutes have made her privy examination and her acknowledgment in open Court or before a Judge, evidence of this assent. The common law ascertains the lactone way, our statutes ascertain it in another — Fines and re* coveries are equally modes of alienation with deeds,* but the common law does not recognize a deed as a mode by which a feme-covert can alien her lands, and therefore declares her deed or her conveyance void. Fines a ad recoveries operate by way of assurance, not of conveyance! for in strict contemplation of law the cognizee in a fine and the demandant in a common recovery, have a title to the land paramount to the feme-covert. But these fictitious proceedings being applied to the purpose of . 1 8 .1 ° 1 1 1 O -II alienation are now considered as modes or passing lands. >j’j)ey were never in use in this state. And the Legislature has prescribed another mode of alienation for feme-coverts, and that is, by deed: and have prescribed a mode in which their deeds may be proved. It is essential to every deed that the maker thereof assent to it. This assent is proved in ordinary cases by proving the scaling and delivery. But as to feme-coverts, the Legislature has declared, that their assent shall be evidenced by their acknowledgment in open Court, they being first privately examined whether they voluntarily agree to make such acknowledgment. Is it not competent for the Legislature to prescribe other modes by which their assent may be evidenced ? Cannot the Legislature say, that other proofs than those required by the existing statutes, shall be good as to the execution of deeds by feme-coverts ? If so, could not the Legislature of 1788, say, that the acknowledgment of Mrs. Brown to the two witnesses to the deed, “ of her having executed it freely and voluntarily,” should be deemed good evidence of the execution of the deed ? And having said so, shall not Courts of J ustice be bound by it ? Shall they not observe the rule of evidence prescribed in this case ? The Legislature cannot exercise judicial powers, properly speaking; but they can prescribe rules for the government of the judiciary and establish the rules of evidence in all cases whatsoever. They have exercised this power in a variety of instances; as in the case of book debts, where they have enabled the vendor of goods, or the performer of work and labor, to prove the sale of the goods or the doing of the work, by his own oath, wherever he has no other mode of proof: they have said how deeds shall be proved, and they surely can say, that other proofs may be admitted than those already recognized — We are to bear in mind that the Legislature have authorised feme-coverts to alien their lands by deed, a mode of alienation ■which the common law declared utterly void. — What is the consequence ? A deed is perfect by the sealing and delivery; the privy examination of the feme-covert and her acknowledgment in open Court, are in no wise essential to the validity of her deed ; this is only a mode of ascertaining whether she hath given her assent to it. If she die before such privy examination and acknow4 ledgment, the grantee can claim nothing, and why ? Not because the deed is invalid, or void, but because he cannot prove its execution. Many deeds made by persons laboring under no disability are inoperative, because their execution cannot be proved; but they are not on that account void. The Legislature may admit other proofs than those authorised at the time the deeds were made, and thus enable the grantees to prove their execution. Where a new rule of evidence is prescribed by the Legislature, it operates alike upon cases existing as upon those to arise in future. These rules are remedial and are made for the purpose of correcting evils which exist at the time, as well as evils which are to arise thereafter.

The doubts which exist upon this part of the case, seem to arise,

1st. From considering the privy examination of a feme-covert, and her acknowledgment in open Court, as essential to the validity of her deed; and that as her deed is imperfect and invalid until such examination and ac-knowlcdgment be had, if she die, her heir at law is entitled ; and

2nd. That the Legislature cannot divest the estate time acquired by her heirs at law; and therefore the act of 1788, is totally inoperative.

In answer to those objections, it may be observed that all our statutes upon the subject of deeds made by feme-coverts, are cumulative: there is no clause in any one of them which repeals all other laws upon the same subject. On the contrary, the act of 1715, ch. 28, which first prescribed the mode of aliening by deed, declares, that if the wife acknowledge her deed in open Court, she being first privily examined whether she acknowledges the same freely, the conveyance shall be as good “to all intents and purposes, as if done by fine and recovery, or by any other way or means whatsoeverclearly intimating that there might be “ other ways and means” of proving the free acknowledgment of the wife. The additional act of 1751, ch. S, has no repealing clause, and also speaks of “ other ways and means” of proving the wife’s free acknowledgment. And it is worthy of remark, that both of these acts validate and confirm deeds which had been previously proved in a certain way, although no law at the time authorised the way. It seems clear from these acts (and they are the only material acts upon the subject) that the Legislature has never considered the privy examination of the wife and her acknowledgment in Court as essential to the validity of her deed.

All the difficulty is removed by considering that it is essential to the validity of every deed, that it be made freely and by persons laboring under no disability to contract in other words, the party contracting must assent to the contract — As to persons laboring under no disability, this assent is often presumed by the law from circumstances, and positive proof of the assent is not required. Thus the sealing and delivery of a deed is presumed from the grantee being in possession of it, and proof made of the hand-writing of the subscribing witnesses, where they are dead. As to persons laboring under some disability, such as coverture, &c. when the disability appears, the law requires other than mere presumptive proof of the assent of the grantor : but all required by the law is, that it shall appear by legal proofs that this assent was given. Until this shall appear, the deed of a person laboring under no disability is no more operative than the deed of a feme-covert. Both deeds stand upon the same footing, and whether either will ever operate for the benefit of the grantee, depends upon , . ...... i i ? i , . 1 his proving that it was executed freely and by a person competent to convey. But in neither case is this proof essential to the validity of the deed. Many valid deeds prove inoperative, because the grantees cannot prove their execution j and it is as absurd to say, that the deed of a feme-covert is invalid, because her privy examination and acknowledgment in Court have not been had, as that the deed of a person laboring under no disability is invalid because its execution cannot be proved. The statutes do not declare that her deed shall be invalid without her privy examination : they differ in this respect from the statutes relative to devises (and many other statutes) which declare the devises void unless the will be attested by a particular number of witnesses, &c.

If then the privy examination of a feme-covert be not essential to the validity of her deed, but is to be considered merely as a mode of ascertaining whether she executed the deed freely, is it not competent for the Legislature to prescribe other modes of proving the same fact ? To declare that her deed when proved in some other way, shall be good to pass her lands f If this reasoning be correct, it seems conclusive upon «the present case. The act of 1788, declares in substance, that the proofs in that case of the frep execution of the deed by Sarah Brown, shall be taken by the courts of justice in this state as sufficient, and the deed be held, deemed and taken by them, as valid to all the intents and purposes for which it was executed.

This way of considering the subject steers clear of the second objection, to wit, thatthe Legislature cannot by any act take away the property of one person and vest it in another. For upon the death of Elizabeth Brown, the legal estate in the lands did not vest in her iieirs at law so as to give them any interest. It resembles precisely the case of a deed executed and delivered, and the grant. 0P dying before its probate and registration. The regig. try acts declare that the grantee shall not have seisin oí the lands until probate and registration : who has the sejg¡n ¡n the interim ? Suppose it to be in the heir of the grantor, the subsequent probate and registration of the deed divests it and gives it to the grantee. "When Elizabeth Brown died, let it be taken for granted that the deed could not be proved under the rules of evidence then prescribed and in force j it is inoperative on that account, and the seisin of the lands vested in her heir. The deed is a mere dead letter because of the want of some legal mode of proving its execution : but it will be recollected that no law declares it in this state of things to be void. Its operation is suspended, and would have remained so, had not the Legislature stept in and declared that as to that deed, other proofs of its execution should be admitted than had been before recogniz. ed$ and those proofs appearing to the Legislature, the deed is declared to be well proved and to be firm and effectual in law, for the conveyance of the lands. This fiat of the Legislature gives to it operation, divests the seisin of Elizabeth Brown’s heir and vests it in George Lucas ; andlif, in ordinary cases where the grantor dies before the probate and registration of his deed, his heirs have no causo to complain that their seisin is divested by the subsequent probate and registration. Mrs. Robison’s heirs have no cause to complain that their seisin has been divested by the operation given to the deed of Sarah Brown by the act of 1788.

The reasoning upon this latter point is founded upon the fact, that the statutes do not declare void the deed of a feme-covert to the free execution of which she has not been privily examined by. a Judge, &c. It is conceded, that if upon a fair construction of those statutes, such deed must be considered to be void, then the heir at law takes the lands, and the objection applies that the Legislature cannot divest him of them. But this construction will not be resorted to without evident necessity. For upon what footing do all our confirming statutes stand ? Certainly upon this, tliat the parties to a contract have attempted to do something lawful in itself, but which cannot be effected without the aid of the Legislature, How many statutes have we, validating and giving effect to certain deeds, powers of attorney, &c. which have cither not been proved at all, or proved irregularly ? Are all these acts void? Surely not. It is not objection that the act of 1788, operates retrospectively j so do all our acts giving a further time to prove deeds, &c. The Legislature have gone on for a century in passing confirming statutes; and shall it be now said that they have no such power ? That this remedial branch of sovereignty, which in this as well as in other countries has been found so necessary forgiving relief in cases beyond the resell of the ordinary tribunals, has never belonged to the Legislature of North-Carolina ? The first General Assembly which met in this province, whose legislative acts are tobe found in our statute book, passed an act validating and confirming conveyances of feme-coverts. The act of 1715. ch. 28, recites, “that “whereas the legal way of passing lands where the estate is in a feme-cov-ert, is by fine and recovery; and it havingbeen formerly practicable in this government (fines and recovery not being in use here) ^r!>at sales have been made by the husband with the wife’s consent, and sometimes by sales from them both, and acknowledged in court, the wife being first privately examined by the court, whether she acknowledged the same freely;” and then declares “ that all such sales which had at any time heretofore been made in manner and form aforesaid, shall be good and effectual against the husband and wife, and their and every of their heirs and assigns, and against all other persons claiming by, from, or under them, or any of them, and that to all intents and purposes, as if the same had been done by fine ami recovery, or by any other way or means whatsoever.” This act, then, prescribes the mode in which feme-coverts may pass their lands ; and as fines and recoveries were not in use, this was the only legal mo(ie> jn which feme-coverts could alien. Yet notwithstanding the Legislature had thus prescribed a mode of alienation, in as much as they did not declare that alien-ations of the wife’s lands in any other mode, should be void, a practice grew up of aliening the lands of the wife in other modes, in some of which her privy examination was never liad (as where she resided in another government.) and much land became possessed under those alien-ations, when the Legislature, in 1751, again steptin and declared “that for the greater security of purchasers, all deeds and conveyancesof lands, theretofore made by the husband and wife, or by the wife and afterwards ratified and confirmed by the husband, wherein a valuable consideration is expressed, for any estate or title of any feme-cov-ert, in any lands, tenements or hereditaments, whether in fee-simple, or right of dower, other estate, not being fee-tail where such deed or conveyances had been registered within twelve months from the date thereof, or should be registered within the space of one year after the return of the commission for taking the examination of the wife, as therein before mentioned; or where the person or persons to whom the same had been made, had actually entered thereupon, and had continued in possession thereof for the space of seven years, by virtue of such deeds j they should be respectively as valid in law, and take effect as fully, to all persons in possession respectively thereby, and their heirs and assigns, against the husband and wife, and every of their heirs and assigns, and against all other persons claiming by, from, or under them, or any of them, as if the same had been done by fine and recovery, or any other way or means whatsoever; any law, custom or usage to the contrary, in any wise, notwithstanding.” This section of the act of 1751, confirms deeds made by husbands and wives, even in cases where the deed merely expresses to be made for a valuable consideration and the grantee lias entered under it and had several • i . . j, •» . years possession, although the wite was never privily examined, nor acknowledged the deed in court. The case of the defendant in the present instance is one much nlore entitled to legislative aid. The deed from Thomas Rob-ison and Mary bis wife expresses to be for a valuable consideration: under this deed Thomas Brown entered and had possession for twenty years, when he sold to those under whom defendant claims, who with the de" fendant have had possession nineteen years; and this possession is aided by the deed made by Thomas Brown, and wife to George Lucas, which also expresses to be made for a valuable consideration_When the act of 1788, was passed, Thomas Brown had had possession of the land for twelve years — If the Legislature in 1751, could confirm a’deed made by a feme-covert, where possession had followed it for seven years, even though she had not been privately examined as to its execution, nor acknowledged it in open court, what is to prevent the Legislature in 1788, from confirming a like deed where twelve years possession have followed under'it? If any reason exists, it must be sought for in the change of government which took place in 1776; and yet it would seem a little strange, that the Legislature of an inde- ‘ pendent state could not exercise the powers and prerogatives of a colonial assembly. The constitution of 1776, may be searched in vain for a restriction of those powers, and there is certainly no fundamental principle in our social compact as it now exists, which forbids the exercise of such powers by the Legislature.

The confirming clauses of the acts of 1715, & 1751, shew very clearly that the Legislature did not consider those irregular deeds of feme-coverts void; and the act of 1751, may well be considered as declaratory of the meaning of the act of 1715, upon this point. For we cannot suppose the Legislature intended to validate and confirm deeds, which, under the operation of the act of 1715, were to be taken as absolutely void: but in as much as the act of 1715, úh\ not prohibit &r\A make void alienations ma(je in a mode different from that prescribed by that act, they were disposed to confirm such alienations.

Let us return to the consideration of the act of 1788. - — Did the Legislature intend by this act to divest the estate from tin heirs of Mary Robison ? Certainly not. —They intended to secure to the grantee of Sarah Brown the lands intended for him, but not to take from the heirs of Mary Robison any estate which belonged to them. This is an act of the Legislative power in aid of aright which, without it, could never have been enjoyed •’ it does not take from one and give to another; it quiets one in the enjoyment of a right against the unjust claim of another? which without the act would have disturbed this enjoyment — In fine, the act dispenses in this caso w'ith certain roceedings which it requires in others, before the right can be enjoyed ¡ and the distinction between cases of this sort and those embraced by the objection urged upon this point is this, where the contracting parties agree to do a thing law'ful in itself, forbidden neither by the moral law nor the statute or common law, and the act is left incomplete, but yet is so circumstanced that the judicial authority can give no relief, then it belongs to that portion of the sovereign power, which must always reside in the Legislative body, to extend relief, and aid the act so as to give it the effect intended by the parties. Or where this act, lawful in itself, is likely to fail owing to the informal or irregular manner in which it has been done, the Legislature can wave this informality, dispense with the regularity required in common cases, and agree that the forms observed by the parties shall be held and deemed sufficient to make the act valid to all the intents and purposes of the contracting parties. In neither of these cases does the Legislature in-termeddle with vested rights which arc coupled with any interest — But if the parties to a contract agree to do something which the law forbids, or to do it in a way which the law prohibits, and the Legislature were to interfere in aid of the agreement, it might then be urged that the Legislature were transcending its powers, and taking from one to give to another. To recur to the statutes relating to devises; these statutes declare void all devises of land, where the will is not attested by two credible witnesses, &c. If the will be not thus attested, the heir at law is entitled : and if the Legislature should af-terwards declare that the will should stand and the devises take effect, notwithstanding its want of attestation, it might be urged with some truth, that they were seeking to take from one his estate and give it to another,* because the right to devise lands, has been granted by the Legislature sub modo only, and all attempts to devise lauds otherwise than is directed by the statutes, are declared null and void.

It is one of the ordinary duties of Legislation to extend relief to cases which lie beyond the reach of the judicial powerand this duty is subject to but one restriction, namely, that in extending this relief, no existing law of the country be violated. In the discharge of this duty, the Legislature have gone on for a century in extending relief, passed act upon act confirming deeds, which without such acts could never have operated, little expecting that its powers upon this subject would ever be questioned, or that it would be gravely urged they were exercising functions which belonged to another department of the government.* The Legislature acts because the judicial power is incompetent to give relief — Does then the act of 3 788, violate any existing law, under which rights were claimed adverse to Mrs. Brown’s grantee ? If so, where is this law to be found ? Not surely in our statute book 5 for none of our statutes declare the deed of a feme-covert void unless she be privily examined as to its execution. The act of 1788, makes provision for a case not provided for by any law at that time i but this provision is not in violation or contravention of any existing law, and must be as obligatory Upon Courts of Justice as any other statute.

This power of extending relief to cases which lie beyond the reach of the ordinary tribunals, is incident to the sovereignty exercised in every state, and could not with propriety be delegated to any judicial tribunal; as no general system of rules could be laid down for the guidance of such tribunal, each case having to rest upon its own peculiar circumstances.

This view of the case seems to render it unnecessary to enquire, what would be the effect of the act. of 1788, if the title to the lands in question vested in the heirs of Mary Robison, coupled with an interest: for it appears pretty clear that they never did so vest. The seisin of the land was in them until the deed of Sarah Brown received an operative effect from the act of 1788. That act operated like the registry acts, divested this seisin and gave it to Sarah Brown’s grantee. The remarks upon this part of the case will be concluded with an observation often before referred to, that in all cases like that provided for by the act of 1788, the Legislature steps in, not to originate a transaction; not to make a contract for individuals nor to alter their contracts; not to change their rights, by taking from one to give to another; but to give effect to a transaction or contract, which, without such aid, must foreverremain inoperative," to settle rights, possessions and estates, precisely in the way in which the contracting parties intended. Thus exercising a remedial power for the quieting of estates, and giving effect to men’s contracts j not an arbitrary, tyrannical power, which sports with rights in violation of existing laws.

2dly. Another important enquiry remains : what is the effect of the act of 1788, supposing the title to the lands in question did vest in the heirs of Mary Robison coupled with an interest ? Does not this act divest this title and give it to General Brown ? This enquiry involves the.question whether the Legislature' cannot divest an estate from one man and give it to another ? It is contended on behalf of the Defendant, that the Legislature have such power, and that it belongs to them exclusively, to determine in what cases and under what circumstances it ought to he exercised — It is admitted that the Judiciary is a co-ordinate branch of the Government with the Legislature, within its constitutional sphere it is supreme j so also is the Legislature. But the Judiciary cannot sit as a counsel of revision upon the acts of the Legislature, and abrogate or set aside those acts, because they may appear to them to have proceeded from an abuse of tiie Legislative power. The constitution confides to each department of the Government certain powers; and it follows, as a necessary consequence, that each department must in its discretion determine when those powers are to be exerted. If the Judiciary can control the discretion of the Legislature, there is an end to Legislation : the Judiciary no longer is to' be regarded as a co-ordinate branch of the Government, but as one possessing paramount powers. If then, the Legislature alone is to determine at what time and under what circumstances they are to exercise their legitimate powers, the only part of the question remaining to be considered is, whether they have the power contended for in this case.

This remedial branch of sovereignty is applied to two classes of cases. 1st, to the redressing of private injuries and the enforcing of private rights. 2nd, to the redressing of public, wrongs and the enforcing of public rights. This extraordinary power is intended to apply •solely to cases which lie beyond the reach of the ordinary tribunals, where the obstruction to the current of public or private right is such, that it cannot be removed without its aid. As to private cases, this extraordinary power is rightfully exercised, not only in enforcing priVate rights, but also in giving effect to the legal infen-tions of contracting parties, in cases where the ordinary jounieipal law can give no relief, and in which, without the aid of this extraordinary power, those rights and this intention would entirely fail — and to this class of cases belong all the confirming statutes which the Legislature have from time to time enacted. How far the Parliament of Great-Britain have gone in passing acts to effectuate the intention of parties, and in divesting one man of his legal rights and in giving them to another, may be seen by looking to the case of Roberts vs. Wy mes> reported in 5 Ch. Ca. 103, cited by Justice Powell in Rep. Ch. 125, and commented upon by Powell, in his Treatise on Devises, page 170, In that case, fraud and circumvention were made use of to induce the testator to disinherit his only child, to which he was peculiarly attached. A bill was. filed to set aside the will, and there was much proof of fraud. But the Chancellor, assisted by three of the Justices, declared that there could be no relief, (hough it was apparently a will obtained by fraud, and that to the prejudice of the heir at law, who had never offended. The heir at law applied to Parliament for relief, and the proofs appearing satisfactory, an act was passed to set aside the will and let the heir into the inheritance — This was done upon the ground that the father intended his only child to have his estate, the proofs being satisfactory to Parliament that the will had been obtained by fraud',* and yet the provisions of Magna Charla were not thought to be violated by this act. ft will be seen that the 12th’ article of our Bill of Rights is copied from Magna Charta and if the latter imposed no restriction upon the Parliament of Great-Britain in giving relief in the case just stated, how can the former impose a restriction upon our Legislature in giving relief in like cases. That the legislative and Judicial branches of Government are to be kept distinct, is as much a fundamental principle of the British constitution, as of the constitution of North-Carolina and the interference of the Legislature in such cases as we are now considering has never been regarded as a violation of this principle — What cannot the Legislature do ? What restrictions are imposed upon its powers? Those restrictions are to be found in our Bill of Rights: and excepting these and the restrictions imposed by the federal compact, what act of sovereignty cannot our Legislature do ? They cannot declare war, because we have yielded up to the general government that part of sovereign power. They cannot grant monopolies nor direct a man to be held to excessive bail, because the constitution of the state declares they ought to do neither. But they can do every act of sovereignty which they are not forbidden to do, or which we have agreed in the federal compact shall not be done by them.

We have fallen into an error upon this subject by assimilating the powers of Congress to those exercised by the State Legislatures. There is a manifest difference. Congress act under delegated powers; they can do nothing but what they arc authorised to do by the grant of powers contained, in the Federal Constitution. All powers not expressly delegated by that instrument are reserved to the states. On the contrary, the state Legislatures can do every thing which they arc not forbidden to do — That in doing many high acts of sovereignty, they may abuse their powers, is very true, but if they do abuse, them, what tribunal shall correct the abuso ? Surely not the Judiciary. The Legislature is irresponsible except to the people. Within the limitations of thfi Bill of Rights and the surrender of powers to the general government, the Legislature of North-Carolina Is as omnipotent as the Parliament of Great-Britain.

If it he alleged that Mary Robison was not a party to the act of 1788, it is answered that the Legislature have dispensed with the neccsity of making her a party. The rule respecting private acts ‘ of the Legislature is well defined. They shall not affect strangers further than the Legislature expressly declare. And in “ all modern private acts, says Mr. Butler, in note 107, 98, b. it is usuaj †0 jnserta special saving clause, explaining how far the rights of strangers are to be affected.” The act of 1788, expressly declares, that “ the heirs of Sarah Brown, or any other person or persons claiming by, from or under them, or any of ¡hem, for the recovery of their lands mentioned therein, shall be perpetually barred from bringing any suit therefor against the said Thomas Brown, his heirs or assigns, any law to the contrary notwith--standing.”

'

2dly. This remedial branch of sovereingty is also applied to the redressing of public wrongs and the enforcing of public rights j and was exercised during the re-volutionas'y war in passing the various acts of confiscation — Those acts divested the estates of the persons therein named, and vested them in the state for public uses. When was it discovered that those acts were unconstitutional ? Have they not been enforced by the courts of justice ever since the year in which they were passed ? And yet do they not take an estate from one person and give it to another? — And that too without the forms of trial, or the verdict of a jury? if it .be said that this was a rightful exercise of sovereign power for the protection of the state against those who had adhered to the public enemies of,the country, it is answered, that theprinciple contended for is at once conceded. For if it be granted, that the Legislature have the power to divest one man of his estate and give it to another,' under any circumstances, it follows, from the reasoning before stated, that they alone are to judge wdien circumstances do exist which justify the exercise of this power. It is certain that there is no other branch of the government authorised to judge. And it is very proper that there should not be any other. For if w-e say thai the Judiciary shall judge, it is saying in substance that the Legislature in the exercise of its legitimate ifiscretion can be controlled by the Judiciary ; and it will lead to this, that the Judiciary are to determine even in the ordinary acts of Legislation, whether the Legislative discretion has been wisely exercised. It is submitted whether judgment should not be rendered for the Defendant.

* An Act to quiet Thomas Brown, of Bladen county, Esquire. in his title to and possession of divers lands, tenements, and hereditaments therein referred to.

Whereas William Bartram, late of Bladen county, Esq. deceased, died intestate, possessed of divers tenements and hereditaments, which descended to his only son William Bartram, who departed this life intestate and without issue, whereby all the said real estate descended to Mary Robeson (formerly Bartram) wife of Thomas Robeson, now deceased, and Sarah Bartram, since the wife of Thomas Brown, Esq. the only surviving' children of the said William Bartram, the father and heirs at law of the said William Bartram, their brother: and whereas after the said Thomas Brown and the said Sarah Bartram intermarried, they agreed to make partition of part of the said real estate with the said Thomas Robeson and Mary his wife, and on the 8th day of February, one thousand seven hundred and seventy-six, the parties made mutual conveyances to each other, the moiety of each sister being conveyed to her and her husband in joint tenancy, as in and by the conveyance of the said Thomas Robeson and Mary his wife, to the said Thomas Brown and Sarah his wife, bearing date the day and year aforesaid, may more fully appear : and whereas afterwards, that is to say, on the twenty-fifth day of March, one thousand seven hundred and seventy-nine, the said Thomas Brown and Sarah his wife, in order to secure a provision for their daughter Elizabeth Brown and her issue, as hereinafter is mentioned, by indenture bearing date the day and year last aforesaid, conveyed to George Lucas, of Bladen county, gentleman, all the lands and tenements mentioned and described in the before mentioned conveyance from the said Tfhomas Robeson and Mary his wife, to the said Thomas Brown and Sarah his wife, and a moiety or undivided half part of all the other lands, tenements and hereditann nts to which the said Sarah was jointly entitled with her said sister of the estate of their said father William Bartram, Esq. and the said Sarah Brown then languishing under a dangerous indisposition, and not likely to live until the next court of her county, and the Judges of the Superior Courts being then on their circuit, so that there was no probability of her living until she could be examined touching her free consent in executing the said last mentioned deed of conveyance, she the said Sarah Brown declared to the persons who were witnesses to the execution thereof privately and apart from her husband the said Thomas Brown, which witnesses were requested by her to hear and certify her said declaration, that she sealed and delivered the same as her act and deed of her own free will and consent, without any fear or compulsion from her said husband, all which the said witnesses have testified in a certificate annexed to the said deed, and the same is sworn to by John Davis, Esq. the surviving witness : and whereas the said George Lucas, on the twenty-sixth day of March, in the year aforesaid, re-conveyed all the lands, tenements and hereditaments herein before mentioned, comprised in the conveyance of the said Thomas Brown and Sarah his wife, to him the said Thomas Brown, his heirs and assigns, of all which he hath ever continued in quiet and peaceable possession ; and at the same time the said Thomas Brown, in consequence of a previous agreement between him and the said Sa_ rah Brown his wife, and as a condition upon which she consented to convey her estate, did enter into one bond or obligation to the said George Lucas, in the penalty of ten thousand pounds currency, conditioned that if the said Tilomas Brown should within twelve calender months from the date thereof, convey to said George Lucas all the before mentioned lands and lots mentioned in the said several convi yances in trust for him the said Thomas Brown during his life, and after the death of the said Thomas Brown, then in trust for Elizabeth Brown, daughter of the said Thomas and Sarah, for her life, and after the death of the said Elizabeth Brown, the daughter, then in trust for the children of her the said Elizabeth in tail ; and in case the said Elizabeth Brown should die without issue at the time of her death, then in trust for the said Thomas Brown, Iris heirs and assigns forever : and whereas : the said Thomas Brown, in pursuance and execution of the several trusts mentioned in the condition of the same bond, did by indenture bearing date the eleventh day of April in the year last afore, said, therein reciting the said condition, convey to the said George Lucas, his heirs and assigns, all and singular, the lands, tenements and hereditaments in the said indenture and the before mentioned bond and conveyances mentioned, and referred to upon and for the several trusts, intents and purposes as in 'the condition of the same bond mentioned and expressed, or in and by the said several deeds and conveyances, registered in the registry of Bladen county, reference being thereto had may more fully appear: and whereas afterwards, that is to say, on or about, the twenty-ninth day of the same April, in the year last aforesaid, before the sitting of the County Court of Bladen, and whilst the Judges of the Superior Court were on their circuit, the said Sarah Brown departed this life, without having been privately ex., amined agreeably to the direction of the act of Assembly, touching her free consent to the execution of the before mentioned convey, anee of twenty-fifth March, one thousand seven hundred and seventy-nine ; and the said Elizabeth Brown, daughter of the said Thomas Brown and Sarah, his wife, having since departed this life at the age of five years or thereabouts, the said trust estate by the tenor of the deeds and conveyances herein before mentioned devolves upon the said Thomas Brown, his heirs and assigns : and whereas it appears upon, indisputable proof to this general assembly, that as the said Sarah Brown hath expressly limited her estate to her own issue in tail, her intentson was to exclude her other heirs in favor of her husband the said Thomas Brown, which is fully expressed by documents exhibited by him the sajd Thomas, so that jthe substance of the act of assembly for the alienation of estates of feme-coverts hath been fully complied with, and even the formalities as far as it was practicable; and the intention of the law being no more than to prevent the alienation of the wife’s estate thro’ the undue influence or by the compulsion of the husband, and the said Thos. Brow" in the present case taking no estate by the said conveyances in the first instance but wha¡. he had before, it is just and reasonable that he should be quieted in his title to and possession of the lands and premises herein before referred to. :

1. Be it therefore enacted by the General Assembly of the State of North-Carolina, and it is hereby -enactedby authority of the same, That all the before mentioned deeds and conveyances shall be held, deemed and taken to be firm and effectual in law for the conveyance of the lands, tenements, hereditaments' and premises therein mentioned against the heirs of the. said Sarah Brown, and so as to bar them and every of them forever; and that the conveyance by indenture from the said Thomas Brown and Sarah his wife to the said George Lucas, bearing date the twenty-fith day of March, one thousand seven hundred and seventy-nine, as before mentioned, with the private examination and declaration of the said Sarah Browa thereto annexed, now upon record in the registry of Bladen county, shall be held deemed, and taken, and in all courts of law and equity shall be construed and adjudged to be good and effectual in law for convoying the estates of the said Thomas Brown, and the said Sarah Brown his wife, and each of them, of, in and to the several lands, tenements, and hereditaments and premises in the said last mentioned indenture, mentioned in the same manner as if the said Sarah Brown had been privately examined with respect to her free consent to the execution thereof in any manner prescribed b” law, and as if such ex" animation and declaration had been certified by any Judge, Justice Court, or Commissioners for that purpose legally appointed : any law, usage or custom to the contrary m any wise notwithstanding.

IX. And be it enacted by the authority aforesaid, That in all or any suit or suits which may hereafter be instituted against the said Tiios Brown, his heirs or assigns, by the heirs of the said Sarah Brown, his late wife, or by any other person or persons claiming by, from or under them, or any of them, for the recovery of all or any of the lands, tenements or hereditaments mentioned or described in the said last mentioned indenture of conveyance, this act may be given in evi" dence, in the same manner as public acts are usually given in evidence, and shall be a perpetual bar to any such suit; any law to the contrary notwithstanding.

Seaweix, Judge

Two questions arise in this case, first, the operation of the acts of 1776, and secondly, the effects of the private acts of Assembly, passed in the year 1778, entitled ff An act to quiet Thomas Brown, of Bladen County, esquire, in his title to and possession of divers lands, tenements and hereditaments therein referred to.” As to the first, Mrs. Brown bcing at the time of making the deed a feme covert, her deed "without a private examination according to the,act of 1751, is a mere nullity and void. By the rules of the common law, femes covert are morally incapable of doing any act which is to bind themselves: this act forms an exception to the common law rule j and to give validity to this deed of the feme covert, it must appear that the deed in question comes within the exception. It has been insisted, that the certificate of the Cierk that “ the deed was acknowledged in open Court and ordered to be registered,” imports a private examination : or if it did not, that it is to be presumed the Court did its duty by examining.Mrs. Robison : but we think differently, and on this branch of the case, I believe we are unanimous.

The certificate implies only, that the parties came into Court in the usual form, and as the acknowledgment is stated to be in open Court, excludes the idea of any other acknowledgment", and though it is correct to presume the doing in a proper manner, every thing confided to a Court, when it shall appear the Court has done the thing entrusted to it, yet that only holds good, as to the manner, and is not universally true as a proposition to that extent.

For tho reason of the rule is, that Courts will be iri, dined to support the thing done, and leave it the parties to reverse the judgment by writ of error; but in su m-mary proceedings which are not according to the rides of the common law, no writ of error will lie; and in such cases, it is required that every thing should appear which authorized the doing of the thing done ; the books contain many cases of this sort upon convictions on statutes; the principle to be extracted from all the cases respecting what things are to be presumed, seems to be this, that whatever is entrusted to the determination of the Courts, to authorize tlie acts done, shall, when the act is done, be presumed to have been sufficient for that purpose, as when a Court is authorized upon satisfactory evidence to do a particular thing: in such a case they are made the Judges of the sufficiency of evidence* but when they are only authorised upon particular prerequisite circumstances they are not entrusted with the authority to determine, and for the thing done to be valid, the essentials required by.law must appear to warrant the proceedings of the Court; we are therefore all of opinion, that the certificate of probate does not warrant a presumption that Mrs. Robison was privately examined as required by the act of 1751, and consequently that the deed is void. Then as to the other point, a majority of us entertain the opinion that the private act of 1778, is a manifest violation of tho 4th section of our Bill of Rights, which declares “ that the Legislative, Executive and Supreme Judicial powers of Government ought to be forever separate and distinct from each other.” — And we think that the whole of the argument in respect to the plenitude of Legislative power is inapplicable to the present, question; the act itself does not profess to direct the heirs of Mrs. Brown and transfer to General Brown, it only declares “ that the several deeds shall be held, deemed and taken to be firm and effectual in law for the conveyance of the lands, Ac., therein mentioned, against the heirs of the said Sarah Brown, and so as to bar them and every of them forever.” This we consider as importing nothing further than the' determination of the Legislature upon the effects in law of the several deeds. By the consitution they are restricted from this exercise of power; they are to make the law, and the judicial power is to expound and determine what cases are within its operation. The Legislature is the only authority which can give to a feme covert the capacity of conveying her lands; they have done so, and pre.-scribed the particular mode in which it should be done, bat whether the deed of Mrs. Brown was executed according to the provision of that law, belongs not to them to decide, nor can they do so without violating the authority under which alone they can pass any acts, the constitution ; upon this point, a majority of 11s are of opinion that the Plaintiff is entitled to judgment, and that we are not under the necessity of re-examining the question whether the Legislature does possess the po wer of stripping one individual of his property without his consent, add without compensation, and transferring it to another; that principle has already been twice examined in this Court, and in both cases determined against the power — 2. Hay. 310, 374—Law Repos. 638 — divers cases have been decided the same way in the Supreme Court of the United States which,, we think, ought to put the question at rest.

BaNieu, Judge.

The deed from Thomas and Sarah Brown to George Lucas, dated the 25th of March, 1779, did not pass the fee-simple estate of Sarah Brown : she never was privately examined by any of those modes and ways pointed out by the Legislature, and without such an examination we are ignorant whether coercion or undue influence was exercised by her husband or not. She being a feme covert at the time the deed was executed, the law declares it void without such an examination.

Had the Legislature any right or power to take the lands " ilhout the consent of the lessors of the Plaintiff, in whom, the fee-simple vested, and without compensation rendered, git e them to General Thomas Brown ami his heirs: or in other words, is the act of the Assembly, passed in the year 1788, confirming the title of Gen. Brown, of any force or effect? I am of opinion, the act is a nullity, and does 110j. affec(; (;}1Q Fights of the lessors of the Plaintiff. The constitution declares, that the Legislative, Executive and Supreme Judicial powers of Government ought to be forever separate and distinct, from each other. The transfer of property from one individual, who is the owner, to another individual, is a Judicial and not a Legislative act. When the Legislature presumes to touch private propertij, for any other than public purposes, and then only in case of necessity, and rendering full compensation ; it will behove the Judiciary to check its eccentric course, by refusing to give any effect to such acts: Yes, let them remain as dead letters on the statute-book. Our oath forbids us to execute them, as they infringe upon the principles of the constitution. Miserable would be the condition of the people, if the Judiciary was bound to carry into execution every act of the Legislature, without regarding the paramount rule of the constitution. This Government is founded on checks and balances. The Judiciary check the, Legislature, when it strays beyond its constitutional orbit, by refusing to enforce its acts. “The opinion of Sir Mathew Male, that a statute is in the nature of a judgment may be law in England, biit in this state, where the constitution has separated the Legislative and Judicial powers, Courts can neither nibble at the Legislative power, nor can the Legislative stride over the Judicial.” In England, “ acts of this kind are carried on in both Houses with great delibera-tión and caution, particularly in the House of Lords. They are generally referred to two Judges to examine and report the facts alleged, and to settle all technical forms. Nothing also, is done without the consent expressly given' of all parties in being and capable of consent, that have the remotest interest in the matter, unless such consent shall appear to be perversely and without any reason withheld ¿ and as before hinted, an equivalent in money or other estate is usually settled upon infants or persons not in efoe, or not of capacity to act, for themselves, who are to be concluded by this act, and a general saving is constantly added at the close of the bill of the rights and interests of all persons whatsoever, except such whose consent is so given or purchased, and who are therein particularly named. Though it has been holden, that if even such saving be omitted, the act shall bind none but the parties.” 2. Blackstone Com. 345. Judge Blackstone then adds, “ a law thus made, though it binds all parties to the bill, is yet looked npon more as a private conveyance than as the solemn act of the Legislature. In this country, a variety of determinations by different Judges, in different Courts, has established the principle, that the Legislature has not the power to take the lands of A. and give them to B. Such a power is. not within the definition of that prerogative affixed to sovereignty, and denominated by writers on national law’, the eminent domain. This prerogátive of majesty is to be pxercised only in case of necessity, and for the public safety. When the sovereign disposes of the property of an individual in case of necessity and for the public safety, the alienation will be valid; but justice demands that this individual be recompensed out of the public money, or if the treasury is not able to pay it, all the citizens are obliged to contribute to it. Vattel, Book 1. Ch. 20.—Sec. 244.

It is by virtue of the eminent domain, that highways are made through private grounds. Fortifications, light, houses and other public edifices, are constructed on the soil owned by individuals. Necessity demands these works; they are for the public safety and the individual is compensated for his loss ; but necessity can never demand that the lands of A. shall be taken and given to B. nor can lbe public safety ever require it.'it is immaterial to the state in which of its citizens the land is vested ; buti is of primary importance that when vested, it should be secured and the proprietor protected in the enjoy mont of it. Judge Patterson, in the case of Vanhorner, lessee, v. Dowanee, 2 Dallas 310, says, “the Legislature has no authority to make an act divesting one citizen of his freehold and veg(j,jg ¡n another, without a just com pensalion; it is inconsistent with the principles of reason, justice and moral rectitude; it is incompatible with the comfort, peace and happiness of mankind ; it is contrary to the principles of social alliance in every free Government, and lastly, it is both contrary to the letter and spirit of the Constitution. In short, it is what every one would think unreasonable and unjust in Ids own case.” Judge Chase, in the case of Calder and Wife, v. Bull & Wife, 3 Dal. 394, observes, “it is not to be presumed, that the Federal or State Legislature will pass laws to deprive citizens of rights vested in them by existing laws, unless for the benefit of the whole community, and on making full compensation.” Chief Justice Parsons, in delivering the opinion of the Court in the case of Walls v. Stetson, 2 Mass. R. 146, says, “ that we are also satisfied that the rights legally vested in this or any other corporation cannot be controlled or destroyed by any subsequent statute.” Chief Justice Marshall, in Fletcher, v. Peck, 6 Cranch, 132, 143, said “ the Legislature of Georgia, in their session of 1796, had no power to divest the titles of the Yazzoo lands out. of those grantees to which the Legislature in its session of 1795 had conveyed.” We all know tiiat Georgia repealed or attempted to repeal the law of 1795, the records were erased or burnt, Congress fretted and stormed, but the grantees held the land.

In tike case between Osborn, v. Unger. 1. Bay's Rep. 197. Judge Burke, said “he should not be for construing a law so as to divest a right: and that a retrosv, pective law in that case would be against the Constituí tution of the state.”

Chief Justice Kent is of the same opinion, Dash v. Van Kluck, 7 Johns, 507.—Chancellor Lansing, in delivering his opinion in tiie case of Catlin, v. Jackson, 8 Johns. 557,.remarking on the passage in Blacks to tie’s Commenta-vies, relative to t!ie manner of passing private acts in England observes, ‘if in Great-Britain, where so many precautionary measures are .taken to preserve the interest of stranger’s, private acts are restrained to the parties only, who are evidenced to be such, by consent to them, either in person or by those who legally manage their concerns for them ; and if when the suggestions on which the act is passed are proved fraudulent, a Court of Chancery will relieve against them, which is there well settled, the general practice which obtains here with respect to the passing such acts generally on the bpre suggestion of the applicants, affords additional anti very cogent reasons against relaxing such restraints : and it can be scarcely necessary to add, to divest an interest to a stranger* to it, is contrary to the clearest dictates of justice and repugnant to the Constitution.” The same doctrine has been held by this Court, University v. Foy. 2. Hay, 310. 374. Law Repos. 638. No principle in the law appears to be better supported by authority than this. The Legislature had no right or power to divest the lessors of the Plaintiff of their title to the lands in controversy, and vest them in General 'Brown and his heirs. The act of 1788, shall not prevent the recovery of the Plaintiff.

The act of limitations does not bar the entry of the Plaintiff j Thomas Brownwas tenant by the curtesy of these lands; on the 4th of June 1706, by deed of bargain and sale, he conveyed in fee to Stephen Barfield. But as he was seised and possessed only of a life estate, the statute of uses executed and transferred that only to the bargainee. The conveying a greater estate in land than a person has by any of those modes of conveyancing which have sprung out of the statute of uses, does not amount to a forfeiture; but it shall pass such estate •or interest which the bargainer had or was seised and possessed of, and no more. 4. Com. Big. “ Forfeiture” JL 3,

“A right of entry in the remainder man cannot exist during the existence of the particular estate, and the laches of a tenant for life, will not affect the party. An entry to avoid the statute must be an entry for the purpose ot taking possession and such an entry cannot be ma(]e (juring the existence of a life estate 4. John, 402. 1. Burr. 120, 126. 2. Salk. 422. 7. East, 311, 312, 319, 321.

The Plaintiff had no right to enter before the death of Thomas Brown, and he died the 22d of November,¡¡1814.

By the Court — Judgment for the Plaintiff.