SMITH V. MARYLAND, 10 U. S. 286 (1810)

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U.S. Supreme Court

Smith v. Maryland, 10 U.S. 6 Cranch 286 286 (1810)

Smith v. Maryland

10 U.S. (6 Cranch) 286


A writ of error lies to the highest court of a state in a case where the question is whether a confiscation under the law of the state was complete before the treaty of peace with Great Britain.

By the confiscating acts of Maryland, the equitable interests of British subjects were confiscated without office found or entry or other act done, and although such equitable interests were not discovered until long after the peace.

Error to the Court of Appeals of the State of Maryland, being the highest court of law and equity in that state, and which affirmed the decree of the Chancellor of Maryland.

The facts of the case appear to be correctly stated in the decree of the chancellor, which was as follows:

"The material facts appearing in this case are that 4 July, 1774, the lands mentioned in the bill were conveyed by Anne Ottey, heir at law of William Ottey, to William Smith, one of the defendants, and that an act of assembly passed in June, 1779, for recording the deed of conveyance which had not been recorded within the time limited by law. That on 5 July, 1774, Smith executed a bond of conveyance to Anne Ottey, widow of William Ottey, and that at the time of passing the act of October, 1780, c. 45, 'to seize, confiscate and appropriate all British property within this state,' he held the said lands under the said deed, subject to the terms of the said bond of conveyance and in trust for the said Anne Ottey, then and now a British subject, and that the lands are now held in the same manner. That on 27 April, 1801, the complainants, Carroll and Maccubbin, gave information of this property being so held to the state's agent, and claimed the composition held out by law on the said information. That on 22 February, 1803, the governor and council agreed to sell the state's right to the said lands to the said Carroll and Maccubbin. That a survey was made and a plat returned and bond given for the purchase money on 30 April, 1803."

"The object of the bill is to compel the defendant Smith to produce in this Court all deeds, papers, and writings respecting the said land and to convey the

Page 10 U. S. 287

same to the said Carroll and Maccubbin, and for general relief,"


"The positions relied on by the complainants in their notes are that the property so held in trust for a British subject, or in which a British subject had an equitable interest but no legal estate, was liable to confiscation under the laws of this state, and was confiscated by it, and that there is nothing in any treaty between the United States and Great Britain to protect the said property or to prevent its being liable to its claim."

"For the defendants it is contended that the 6th article of the treaty of 3 September, 1783, declaring that there should be no future confiscations made had the effect of preventing any transfer by the executive of property which might have been confiscated, but was only legality, and not actually transferred from private to public use or from the possessor to the state, and that such transfer by the executive must be considered as a future confiscation or setting apart for the public property the use of which an individual had, and therefore contrary to the stipulations of the treaty. And it is also contended that under the 9th article of the British treaty of 19 November, 1794 (by which it was agreed that the British subjects who then held lands in the territories of the United States should continue to hold them according to the nature and tenor of their respective estates and titles therein), this property is protected, being then held by the defendant Smith as agent of and for Anne Ottey, a British subject, and therefore then held by her."

"In a case of this nature, where an important question as to the operation of a treaty arises, it would be satisfactory to the chancellor to have the opinion of a court of law or its judges. The late change in the judiciary has, however, rendered the obtaining such an opinion less practicable than it formerly was, and it appears also that the most material ground taken by the defendants has been already decided on by the general court in the case of Norwood's Lessee v. Owings. "

Page 10 U. S. 288

"A number of points were decided in that case, but the one most applicable to the present question was the determination by the court or the opinion expressed that the State of Maryland, by its commissioners, was in possession of all British property within the limits of the state under and by virtue of the Act of Confiscation, October, 1780, c. 45, and the act of the same session, c. 49, to appoint commissioners, &c., and the possession of the said land was in the State of Maryland at the time the said Edward Norwood obtained his escheat warrant, and that no British subject could hold land in the State of Maryland on 19 November, 1794, the time when the treaty was entered into between Great Britain and the United States."

"It is not necessary at this time to declare any opinion as to the intent and meaning of the 9th article of that treaty or to ascertain to what part of the territories of the United States it might have applied. It is sufficient to observe that according to the opinion of the general court, standing as yet unreversed, it could not apply to this state."

"There is nothing in this case to induce the chancellor to determine contrary to that opinion, and if the holding of the land by Smith for Anne Ottey was a holding by her in October, 1780, and occasioned its confiscation, it cannot be considered that she held the land in November, 1794, so as to be enabled, by the 9th article of the treaty with Great Britain then made, to continue to hold it according to the nature and tenor of her estate."

"The words of the 2d section of the Act of October, 1780, c. 45, are, 'That all property within this state (debts only excepted) belonging to British subjects shall be seized, and is hereby confiscated to the use of this state,' and under this general expression it is considered that land in which the legal title was held by a citizen of this state in trust for a British subject (as is the case now in question) was included. "

Page 10 U. S. 289

"That this was the construction given to the act appears from the subsequent conduct of the legislature and the executive of this state, and particularly by the first section of the Act of 1784, c. 81, which directs that the intendant of the revenue be authorized and required to call on all persons having confiscated British property in their possession, or the title papers thereof, or relating thereto, to discover and deliver up the same, and if the said intendant has probable and good ground to suspect that any person holds the same in trust for any British subject or conceals the same, or any deeds, writings, or evidence of the titles to such property, he may and shall direct the Attorney General to file a bill in the High Court of Chancery on behalf of this state for the discovery of such trust or concealed property and for delivering up such deeds, writings, and evidence of title to the same; thereupon proceedings shall be had, and decree made according to the rules of the High Court of Chancery in such cases."

"And it will be observed that by the fifth article of the treaty of 1783, the recommendation to be made for a restitution of property confiscated extends to all estates, rights and properties."

"If, then, this property was confiscated and the right to it vested in the state by the Acts of October, 1780, c. 45, and c. 49, the chancellor does not perceive how it can be affected by the sixth article of the treaty of 1783, declaring that there should be no future confiscations made."

"The future acts of confiscation to be restrained by that article were absolute confiscations, and not the dispositions that might be necessary for those which had been made."

"Such dispositions might have been the subject of consideration if the recommendations made for a restitution of property confiscated had been complied with by this state."

"Considering, then, the lands in question to have been

Page 10 U. S. 290

confiscated, and that the right of the state or those claiming under the state is not affected by either of the treaties which have been relied on, it remains only to inquire as to the grounds of the complainants' application to this court and the nature of the relief to which they may be entitled."

"The Act of 1802, c. 100, under which the complainants allege that the purchase was made, declares that it shall and may be lawful for any person or persons purchasing as aforesaid any confiscated British property under the authority of this act to prosecute any suit or suits, either in law or equity, in the name of the state for recovery of said property for their use."

"If this property had not been sold, it might have been competent for the state to have proceeded by suit to divest the legal estate from the defendant William Smith, and it seems consonant to equity and to the provisions of the act just mentioned that in the present case it should be vested in the complainants, who were the purchasers from the state."

Then follows the formal part of the decree, that Smith should convey the land to Carroll and Maccubbin. From this decree Smith appealed to the Court of Appeals of Maryland, which confirmed the decree, whereupon he brought his writ of error to this Court under the provisions of the 25th section of the Judiciary Act of 1789, Laws U.S. vol. 1, p. 63, the decision being against the right claimed under the treaty.

Page 10 U. S. 304

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