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1825.

Carneal

The treaty of 1778, between the United States and France, allowed

the citizens of either country to hold lands in the other ; and the title, once vested in a French subject, to hold lands in the United States, was not devested by the abrogation of that treaty, and the expiration of the subsequent convention of 1800. Bill to rescind a contract for the exchange of lands dismissed under

the special circumstances of the case.

Banks. Banks

v. Carneal.

Feb. 20th.

THESE causes was argued by Mr. Jones, for Banks, and by Mr. Bibb, for Carneal and others.

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Mr. Chief Justice MARSHALL delivered the opinion of the Court.

These appeals are from a decree of the Circuit Court for the District of Kentucky, in which Carneal's heirs were decreed to pay Henry Banks 2,500 dollars, for failing to perform a contract entered into between Thomas Carneal, their ancestor, and the said Henry Banks.

The bill filed by Henry Banks, charges, that his agent, Cuthbert Banks, entered into a contract with Thomas Carneal, whereby be agreed to transfer to Carneal the right of the said Banks in 30,000 acres of land purchased by him from John Harvie, for which right said Carneal“ agrees to give a tract of 2,000 acres of land on Green river, patented for Philip Philips, which was sold out of a tract of 22,100 acres, by Philips, to Michael Lacassaign, deceased, by said Lacassaign to said Carneal, on the 30th of July, 1797, for which land said Carneal is to make a general warranty deed whenever thereunto required."

The bill further charges, that Carneal was guilty of fraud in pretending to have a good title

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to the said 2,000 acres of land, the whole being 1825. covered with better titles, and in representing the

Carneal land as much more valuable than it really is. The

Banks. bill prays, that the contract may be rescinded, and that the plaintiff may be reinstated in his Banks rights to the said 30,000 acres of land, or have Carneal. the value thereof in damages. And that the heirs of John Harvie, deceased, in whom the legal title to the said 30,000 acres remains, may be decreed to convey the same to him.

The heirs of T. Carneal deny all fraud in his representation of the value of the land sold to the plaintiff, and insist on their ability to con vey the same. They admit, that the deed from Lacassaign to him was not recorded within the time limited by law, one of the three subscribing witnesses then required for its proof, having died before it was offered to the Court. In consequence of this circumstance, Carneal, in 1779, instituted a suit in Chancery against Lacassaign, to perfect his title, which abated by his death. The law being so changed as to admit deeds to record on the oath of two subscribing witnesses, this deed was recorded in 1814, and the defendants are willing to convey, if directed so to do.

The defendants farther state, that the plaintiff's original claim on the said 30,000 acres of land, was to only a moiety thereof, the other moiety being the property of the locator, which has been transferred to the defendants. The said Banks assigned the survey to J. Harvie, that the patent might issue in his name, in trust for the person entitled to the locator's moiety, and the title still

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1825. remains in Harvie's heirs, encumbered by debts

due from Banks to Harvie, and by an obligation in Carneal

which Harvie was bound to Thomas Madison, as Banks.

surety for Banks for the conveyance of military Banks lands northwest of the Ohio. To obtain a title Carneal. from Harvie, the said Carneal, in September,

1799, bound himself to pay the debt due from Banks, with Harvie as his security, to Madison, on condition that Banks would deliver him military land warrants to the amount of 4,300 acres; and it was expressly stipulated, that Carneal should retain the title to the said 2,000 acres of land, until Banks should perform this contract. He requires the plaintiff to show how he has performed it. They understand that Harvie's heirs have a claim on the estate of their ancestor, of which they know nothing certain, and aver, that the title to the locator's moiety of the said 30,000 acres of land, remains in the said heirs. The defendants, then, pursuing a practice authorized by law in the State Courts of Kentucky, pray that their answer may be received as a cross bill; and that Harvie's heirs, as well as Banks, may be made defendants to it, and may answer it; and that the whole controversy may be settled.

On the 20th of September, 1799, J. H. conveyed to T. C. the moiety of the said patent for 30,000 acrés, which had been sold by the said Banks to Carneal.

On the same day, the following agreement was entered into:

“ Thomas Carneal agrees to pay John Preston, or John Harvie, 3,200 acres of military land,

cres

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lving on the northwest side of the river Ohio. 1825. surveyed on or before the 10th day of October,

Carneal 1795, to satisfy a bond executed by the said John

Banks. Harvie, as security for Henry Banks, to Thomas Madison, deceased, dated the 6th day of Decem

Banks ber, 1795; provided the said Carneal shall receive Carneal. from Cuthbert Banks, in Kentucky, 4,300 acres of military continental land warrants, within ninety days after the said Carneal shall make demand of them of Cuthbert Banks, in Lexington, in Kentucky; and provided the said Carneal shall not receive the warrants, he will not, afterwards, be bound to take them unless he pleases. Henry Banks agrees that he will furnish the said 4,300 acres of military land warrants, through the agency of Cuthbert Banks, within the time above mentioned ; and if he fails to do so, and the said Thomas Carneal satisfy the bond for military land due the estate of the said Thomas Madison, as aforesaid, by the said H. B. and J. H., in such case the said H. B. obliges himself to satisfy and pay off the said obligation, according to its true value, upon the application of the said Thomas Carneal, or still to give the 4,300 acres of military land warrants, at the option of the said Carneal.” Signed by H. B. and T. C..

There are letters from J. H. to T. C., the last dated the 3d of March, 1802, not long before his death, urging T. C. to satisfy the debt to the estate of T. M.

The answer of Banks to what is termed the cross bill, states, that he has sued Madison's representatives in Virginia, to compel them to re

Vol. X.

24

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1825. ceive a compensation in money for the military

a lands he was bound to pay, there being no lands Carneal

which are within the description of the obligation; Banks.

and that the suit is still depending Banks The parties agree that the debt to Madison is Carneal. not satisfied, and that the representatives of J.

H. hold an obligation of T. C.,. deceased, for payment of the same, or as indemnification to H., as referred to in the answer and pleadings in the same.

In May, 1819, the plaintiff filed an amended bill, stating that Michael Lacassaing was an alien, and never became a citizen of the United States. That his deed, being proved by only two witnesses, could not pass the title to T. C. That Carneal knew his title to be defective when he sold to Banks. That Lacassaing left no heirs in this country, and has made some person in France his residuary legatee. That there are debts and judgments against him to a large amount, which bind the land.

The answer admits Lacassaing to have been a Frenchman, but not an alien. That he emigrated early to this country, before and at the close of the war, and continued a citizen till his death. They insist that the legal title passed, by the deed of the said Lacassaing, and deny that the land is encumbered.

The Circuit Court was of opinion, that the contract between Banks and Carneal required that the tract of 2,000 acres, which Carneal bound himself to convey to Banks, should be a tract lying on Green river, and that as the land did

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