Maryland Archives Court Records.....Smith v. The State of Maryland, 1810

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File transcribed for use in USGenWeb Archives by:
Allie Griffith-Nelson alinel@sbcglobal.net Sept.5,2006

Source: Condensed Reports Of Cases In Supreme Court
Written: 1827

February Term, 1810 

Smith v. The State of Maryland,at the instance and for the use of Carroll and Maccubbin.

                     6 Cranch's Reports, 286 to 307

A writ of error lies to the highest court of the 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 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.
[see note at the end of the case]

ERROR to the circuit 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 defendants in error filed a bill in the court of chancery of Maryland,to compel
Smith to produce all the deeds,papers and writings respecting a certain tract of land
in that state,and to convey the same to Carroll and Maccubbin,and for general relief.
On the 4th of 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 an
act of assembly passed June, 1779, for recording the deed of conveyance, which
had not been recorded within the time limited by law. On the 5th of July, 1774, 
Smith executed a bond of conveyance to Anne Ottey,widow of William Ottey, 
and 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 the lands are now held in the
same manner. On the 27th of 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.On the 22nd of February,1803,
the governor and council agreed to sell the state's rights to the said lands to the said
Carroll and Maccubbin. A survey was made and a plat returned, and bond given
for the purchase money on the 30th of April, 1803.

The chancellor decreed that Smith should convey the land to the complainants,
Carroll and Maccubbin. From this decree Smith appealed to the court of appeals 
of Maryland, who confirmed the decree; whereupon he brought his writ of error 
to this court,under the provisions of the twenty-fifth section of the judiciary act 
of 1789; the decision being against the right claimed under the treaty.
The case was argued by Johnson and Jones,for the plaintiff in error,and by
Ridgely and Harper for the defendants.

The questions discussed by the council in the argument were, 1.Whether 
this court had jurisdiction of the case. 2.Whether the act of the legislature
of Maryland operated to confiscate the property held by the appellant.

SUPREME COURT (Smith v. The State of Maryland)

Mr. Justice Washington delivered an opinion of the Court.
This cause comes before the court upon a writ of error to the court of appeals
of the state of Maryland ;and the first question is,has the supreme court of
the United States appellate jurisdiction in a case like the present? It is contended, 
by the defendants in error,that the question involved in the cause turns exclusively
upon the construction of the confiscation laws of the state of Maryland,passed 
prior to the treaty of peace; and that no question, relative to the construction of that 
treaty , did or could occur. That the only point in dispute was, whether the confiscation 
of the lands in controversy was complete, or not,by mere operation of those laws, 
without any further act to be done. If the former,it was admitted, on the one side, 
that the right of Anne Ottey,the British subject,was not saved or protected by the
treaty; if the latter, then it was agreed, on the other, that it was protected; and that 
no proceedings subsequent to the treaty, in order to perfect the confiscation, could be 
supported.

This argument proves nothing more than that the whole difficulty in this case depends 
upon that part of it which involves the construction of certain state laws,and that the 
operation and effect of the treaty,which constitutes the residue of the case, is obvious 
so soon as that construction is settled. But still the question recurs,is this a case where
the construction of any clause in a treaty was drawn in question in the state court, and 
where the decision was against the title set up under such a treaty?

The only title asserted by the defendants in error, to the land in dispute, is founded 
upon an alleged confiscation of them by the state of Maryland, and a conveyance to
them of the right thus acquired by the state. The title set up by the plaintiffs in error, 
for Anne Ottey,and the only one which could possibly resist that claimed by the grantees 
of the state,is under the treaty of peace; the sixth article of which protects her rights, 
provided the confiscation, by the laws of the state, was not complete prior to the treaty. 
The point to be decided was and is,whether this be a case of future confiscation, within 
the meaning of the sixth article of that treaty;and, n order to arrive at a correct result in
the decision of that point, it became necessary,in the state court,and will be necessary in
this, to inquire whether the confiscation,declared by the state laws,was final and complete, 
at the time the treaty was made, or not? The construction of those laws, then, is only a step in
the cause leading to the construction and meaning of this article of the treaty; and it is
perfectly immaterial to the point of jurisdiction, that the first part of the way is the most
difficult to explore. Although the defendant's council admit, and the supreme court of the
state may,in this particular case, have decided, that, where the confiscation is not complete 
before the treaty, the estate attempted to be confiscated is protected by the treaty,still,if,according
to the true construction of the state laws,this court should be of opinion that the 
acts of confiscation left something to be done necessary to the protection of the title 
claimed under them, which was not done at the time the treaty was made, we must say that,in this 
case, the construction of the treaty was drawn in question,and that the decision of the state court 
was against the right set up, under the treaty, by one of the parties.

This leads to the consideration of the merits of cause, which depend upon the question 
before stated, viz. whether the confiscation of the lands in question was so far complete 
by the laws referred to, that the title and estate of Anne Ottey was divested out of her and 
vested in the state, prior to the treaty of peace? This must depend upon the true construction 
of the acts passed in the year 1780, chapters 45 and 49; as it is not pretended that any proceedings
were instituted in the nature of an office, to complete the forfeiture of these
lands, upon the ground of alienage or otherwise.

The first law declares generally that "all property within this state, belonging to British
subjects, debts only excepted, shall be seized, and is hereby confiscated to the use of
this state." Anticipating, as it would seem, that questions might arise, after peace, 
in respect to lands not proceeded against according to the rules of common law; 
the legislature, in the same session,passed a second law, appointing certain commissioners,
by name, to preserve all British property seized and confiscated by the former law, and 
declaring the said commissioners to be in the full and actual seisin and possession of all
British property seized and confiscated by the said act, without any office found, entry,  
or other act to be done, with power to the said commissioners to appoint fir persons to 
enter and take possession of said property, for the purpose of its preservation.

It would seem difficult to drought a law more completely operative to divest the whole
estate of the former owner, and to vest it in the state. The arguments against giving to 
these laws such an effect are,that,the expressions used in these laws do not import a confiscation
of merely equitable estates;and that no estates were intended to be confiscated, 
but such as were discovered and seized into the hands of the state, prior to the treaty.
It is true that the word property,used in both laws,means the thing itself, intended to
be affected by them, whether it were land or personal property; but then it is equally clear,
that the thing itself, whatever it might be, ceased, by the operation of these laws, to belong 
to the British subject and became vested in the commissioners,for the use of the state. The
cestui que trust,though not in possession of the property,was,nevertheless,the real 
owner of it; and, if the property or thing itself had come into the actual possession of the
commissioners, who would have held it to the use of the state,it would seem difficult to
maintain the position, that a scintilla of interest or estate remained,for an instant afterwards,
in the former owner.

But no act of commissioners was necessary in order to obtain seisin in the land,to
support the use thus transferred from Anne Ottey to the state. No seizure was necessary.
The second law considers that all property belonging to British subjects was,by the mere 
operation of the first law,seized and confiscated; and declares that commissioners were then
in full and actual seisin and possession of the property, so seized and confiscated by the first law, 
though no entry or other act had or should be made done.

Being thus in the actual seisin,under the second law, which seisin had been declared by the first
law to enure to the use of the state, it is perfectly immaterial at what time the right of
state to the lands now in controversy,thus completed prior to the treay,was discovered, or
at what time actual seisin and possession was obtained. From the time that the second law
came into operation, the possession of the trustees of Anne Ottey either ceased to be legal, 
or it was to be considered as the possession of the commissioners,to the new use which had
been declared by law.

The present suit is between persons claiming under the state, and others who either held
the lands wrongfully,or for the use of the state,and it is in no respect necessary to the 
perfection of the change of the property produced by the laws of confiscation.

Judgment affirmed, with costs.

Confiscation and sequestration
1 Peter's Digest, 531.