McIver v. Walker. plaintiff gave, in substance, the same evidence which he gave upon the first trial, and proved, or offered to prove, these additional facts-That it was the express and declared intention of the surveyor to locate the land upon Crow creek; that his field-notes called for crossing Crow creek, and that he supposed the courses inserted in the grants would place the lands upon Crow creek. Upon the former trial, it was proved, and admitted by the parties, that the beginning of lot No. 1, was riarked as a corner, but that no survey had ever been made of that lot, or of the lots of land in dispute. Upon the last trial, the witness gave the same testimony, and further stated, that a corner was marked for the beginning of lot No. 1. That the compass was set at this corner, and a chain or two might have been stretched upon the first course of the grant; but of this he was not certain. During the last trial, various objections were made by the defendants to the testimony offered, by the plaintiff; especially, to that which tended to prove that it was the intention of the surveyor to locate the land upon Crow creek, and that his field-notes called for crossing Crow creek. These objections were sustained by the court, and the testimony declared inadmissible. Upon the evidence given in the cause, various instructions were prayed by the plaintiff, all of which the court refused to give; but charged the *451] jury, that *if, from the testimony then adduced, they should find that McCoy, the deputy-surveyor, when he went upon the ground to survey the land, did mark the beginning corner of lot No. 1, upon two poplars, and set his compass a given course, and that the chain-carriers stretched one or two chains upon that course, and that McCoy made his field-notes in conformity thereto, and that those field-notes were transmitted to James W. Lachey, the surveyor, who made out the plats annexed to the grants, and that he made out the said plats in conformity with the said field-notes, and that he marked down Crow creek, by guess, upon the plats, that this was so much of a legal and actual survey, as to show that the surveyor committed no mistake in what he did upon the ground, notwithstanding it might not be according to what he wished or intended in his own mind; and in that case, the lessor of the plaintiff would be barred by the courses and distances. called for in the grant. Under this instruction of the court, a verdict was found for the defendants, and judgment rendered accordingly, upon which the cause was again brought to this court by writ of error. This cause was argued at the last term, by Swann and Campbell, for the plaintiff in error, and by Williams, for the defendants in error, and was reargued, at the present term, March 1st, by Swann, for the plaintiffs in error, and by Jones and Williams, for the defendants in error. March 11th, 1819. MARSHALL, Ch. J., delivered the opinion of the *452] court.-*The court has re-examined the opinion which it gave, when this cause was formerly before it, and has not perceived any reason for changing that opinion. Nor do the new facts introduced into the cause, in any material degree, vary it. If there had been a settled course of decisions in Tennessee, upon their local laws, different from the judgment pronounced by this court, we should not hesitate to follow those decisions. But upon an examination of the cases cited at the bar, we do not perceive Orr v. Hodgson. that such is the fact. The judgment of the circuit court is, therefore, reversed, and the cause remanded for further proceedings. : JUDGMENT. This cause came on to be heard, on the transcript of the record, and was argued by counsel: on consideration whereof, it is the opinion of this court, that the circuit court erred in the instructions given to the jury it is, therefore, adjudged and ordered, that the judgment of the circuit court for the district of East. Tennessee, in this cause, be, and the same is, hereby reversed and annulled. And it is further ordered, that the said cause be remanded to the said circuit court for further proceedings to be had therein, according to law. *ORR v. HODGSON and Wife, et al. [*453 Bill for rescinding a contract for the sale of lands, on the ground of defect of title, dismissed with costs. An alien may take an estate in lands, by the act of the parties, as by purchase; but he cannot take by the act of the law, as by descent. Where a person dies, leaving issue, who are aliens, the latter are not deemed his heirs in law; but the estate descends to the next of kin who have an inheritable blood, in the same manner as if no such alien issue were in existence. The 6th article of the treaty of peace between the United States and Great Britain, of 1783, conpletely protected the titles of British subjects to lands in the United States, which would have been liable to forfeiture, by escheat, for the defect of alienage; that article was not meant to be confined to confiscations jure belli.1 The 9th article of the treaty between the United States and Great Britain, of 1794, applies to the title of the parties, whatever it is, and gives it the same legal validity as if the parties were citízens; it is not necessary that they show an actual possession or seisin, but only that the title was in them, at the time the treaty was made. The 9th article of the treaty of 1794 did not mean to include any other persons than such as were British subjects or citizens of the United States. APPEAL from the Circurt Court for the District of Columbia. The appellant filed his bill in equity in the court below, stating, that on the 10th day of January 1816, he purchased of the defendants, William Hodgson and Portia, his wife, and John Hopkins and Cornelia, his wife, a tract of land called Archer's Hope, situate in the county of James' City, in the state of Virginia, for the sum of $5000 and gave his bond to the said Hodgson and Hopkins for the payment of the said purchase-money. That, at the [*454 time of the purchase, the defendants affirmed to the plaintiff, that they were seised in right of the said Portia and Cornelia, of a good, sure and indefeasible estate of inheritance, in fce-simple, in the said tract of land, and had full power and lawful authority to convey the same, and in consequence of such affirmation, the plaintiff made the purchase, and gave his bond, as aforesaid. And further stating, that he had since discovered, that the defendants had no title to the said lands, but that the title thereto was either vested in the children of the Countess Barziza, or that the commonwealth of Virginia was entitled to them by escheat. That Colonel Philip Ludwell, a native of 1 Shanks v. Dupont, 3 Pet. 242. Blight v. Rochester, 7 Wheat. 535; Hughes v. Edwards, 9 Id. 489. Orr v. Hodgson. the said commonwealth, being seised in fee of the said lands, had two daughters, Hannah and Lucy, born of the same mother, in Virginia. That, some years before the year 1767, he removed with his family, including his said two daughters, to England, where he died, in the year 1767, having, by his last will, devised all his estates to his said two daughters, and appointed as their guardians, Peter Paradise, John Paradise, of the city of London, and William Dampier. That Hannah, one of the said daughters, married William Lee, a native of Virginia, and died, leaving issue, two daughters, the said defendants, Portia Hodgson and Cornelia Hopkins, who are citizens of Virginia, residing in the district of Columbia. That Lucy Ludwell, the other daughter above mentioned, during her infancy, to wit, in May 1769, at the city of London, married the said John Paradise, a British subject, by *whom she had issue, a daughter, named Lucy, born in England, *455] about the year 1770. That the said Lucy Paradise, daughter of the said John and Lucy Paradise, on the 4th of April 1787, at the said city of London, married Count Barziza, a Venetian subject, by whom she had issue, a son, named John, born in the city of Venice, on the 10th of August 1796. That the said John Paradise, in the year 1787, came to Virginia, with his wife, and returned with her to England, in 1789, where he died, in 1796, having, by his last will, devised all his personal estate, charged with some pecuniary legacies, to his wife, but making no disposition of his real estate, and leaving no issue, but the Countess Barziza. That the said Countess Barziza died intestate, in Venice, on the 1st of August 1800, leaving her said sons, John and Philip, her only issue; and that neither her sons, nor herself, nor her husband, were ever in the United States. That the said Count Barziza was also dead. That the said Lucy Paradise, after the death of the said John Paradise, her husband, treated the said lands as her own, exercising acts of ownership over the same, and about the year 1805, returned to Virginia, where she died intestate, in 1814, being in possession of said lands at her decease, and leaving no issue but the two sons of Countess Barziza above mentioned, who, at the time of her death, had not become citizens or subjects of any other state or power than Venice and Austria. That by marriage articles, made before the marriage of John Paradise and Lucy Ludwell, between the said John Paradise, of the first part, the said *456] Peter Paradise, his father, *of the second part, the said Lucy Ludwell of the third part, the said William Dampier, of the fourth part, and James Lee and Robert Carry, of the fifth part, reciting the said intended marriage, and that the said Peter Paradise had agreed to pay his son 40007. sterling, at the marriage, and that his executors should pay 40007. sterling more to Lee and Carry, upon the trusts thereinafter mentioned. And that the said John Paradise and Lucy had agreed, that all the estates of the said Lucy Ludwell should be settled as thereinafter mentioned, but that, by reason of her infancy, no absolute settlement of the same could then be made. It was witnessed, that in consideration of the marriage, and for making provision for the said Lucy Ludwell, and the issue of the said John Paradise on her body to be begotten, and for the consideration of ten shillings, to the said John Paradise, paid by the said Lee and Carry, and for divers other good causes and valuable considerations, him, the said John Paradise, thereunto moving, he, the said John Paradise, covenanted with said Lee and Carry, that if the marriage took effect, he would make, or cause Orr v. Hodgson. to be made, such acts and deeds as would convey all the estates of the said Lucy Ludwell to the said Lee and Carry, upon trust, as to that paft of the real property, which was situate in Virginia: 1. To the use of John Paradise for life, remainder to the use of all or any of the children of the marriage, for such estates (not exceeding estates-tail) as John Paradise and the said Lucy Ludwell, by deed, during the coverture, or as the survivor of them, by deed or will, should appoint, and in default *of such appointment, to the use of all the children of the marriage, as [*457 tenants in common in tail, with cross-remainders in tail, remainder to the use of such person as the said Lucy Ludwell should appoint, and in default of such appointment, to the use of the survivor of John Paradise and Lucy Ludwell in fee-simple: 2. With power to the husband and wife, to make leases not exceeding twenty-one years: 3. With power to the trustees to sell any part of the estate, and apply the proceeds to the purchase of other lands in England, subject to the use of the marriage articles. And as to the personal estate of the said Lucy Ludwell, to the use of John Paradise for life, remainder to Lucy Ludwell for life, remainder to the children of the marriage, as the parents should appoint, and in default of such appointment, to the use of all the children of the marriage, share and share alike: but if there should be no children of the marriage, or being such, if all of them should die before the age of twenty-one, or marriage, then to the use of such person as the said Lucy Ludwell should appoint, and in default of such appointment, to the survivor of the said John Paradise and Lucy Ludwell, in absolute property. And as to the second of the said sums of 4000l., to the trustees, upon trust for the use of John Paradise for life, remainder for Lucy Ludwell for life, remainder to the children of the marriage, in the same manner as the personal estate of the said Lucy Ludwell was settled: provided, that if there should be no issue of the marriage, then to the use of John Paradise in absolute property: provided also, that it should and might be *lawful for the trustees, with the consent of the said John Paradise and Lucy Ludwell, or the survivor of them, and after the [*458 death of such survivor, of their or his own authority, to lay out the same in lands in England, to the use of John Paradise for life, remainder to Lucy Ludwell for life, remainder to the children of the marriage in the same manner as the lands of the said Lucy Ludwell were settled. That after the death of the said Peter Paradise, the said John Paradise, as his executor, paid the last mentioned 4000%. to the trustees aforesaid, who invested it in the British funds, and by deed dated the 8th of December 1783, and to which the said John Paradise and Lucy Ludwell were parties, they declared the same subject to the uses of the marriage settlement. The bill further alleged, that the plaintiff, upon discovering the foregoing circumstances, applied to the defendants, and requested them to rescind the contract, and to deliver up the bond to the plaintiff to be cancelled, the same having been obtained by misrepresentation, or through mistake, without any consideration valuable in law, and at the same time, offered to convey back to them any title, interest or estate, which might have been conveyed to him by the defendants. But that the defendants refused, and threatened to bring a suit at common law, upon the said bond, and to enforce payment thereof, contrary to equity. Concluding with the usual prayer for a discovery, &c., and for a decree rescinding the sale of lands, and that the Orr v. Hodgson. defendants should be compelled to deliver up the bond to be cancelled, and for further relief, &c. *To which bill the defendant demurred. *459] The bill was dismissed by the court below, with costs, and the cause was brought by appeal to this court. February 18th, 1819. The cause was argued by Jones, for the defendants and respondents-no courel appearing for the appellant. March 11th. STORY, Justice, delivered the opinion of the court.—The whole merits of this cause rest upon the question, whether the defendants, Portia Hodgson, and Cornelia Hopkins, took an estate in fee-simple, in one moiety of the land stated in the bill, by descent, as nieces and heirs of Lucy Paradise, widow of John Paradise, upon her death in 1814. If they did, then the contract for the sale of the land to the plaintiff ought to be fulfilled; if not, then the contract ought to be rescinded. Two objections are urged against the title. First, that Lucy Paradise, at the time of her death, was a British subject, and so not capable of passing the land in question by descent; secondly, if so entitled, yet, upon her death, the land escheated to the commonwealth of Virginia, for want of heirs legally entitled to take the same by descent. It appears, that Lucy Paradise took her moiety of the estate in question, by devise from her father, Philip Ludwell, who was a native of Virginia, where alsò, his daughter Lucy was born. Sometime before the year 1767, he removed with his family, including this daughter, to England, where he died in *1767. In 1769, this daughter was married in *460] England to John Paradise (a British subject), by whom she had issue a daughter, Lucy, who was born in England, about 1770, and who, afterwards, in 1787, in England, married Count Barziza, a Venetian subject, by whom she had two sons, one born in Venice, in February, 1789, and the other in Venice, in August 1796, both of whom are now living. The Countess Barziza died in Venice, in August 1800, leaving no other issue except her two sons, and neither she, nor her husband, nor her sons, were ever in the United States. In the year 1787, John Paradise came with his wife to Virginia, and returned with her to England, in the year 1789, where he died, in 1796. After the death of her husband, Lucy Paradise treated the land in controversy as her own, exercising acts of ownership over it; and about the year 1805, returned to Virginia, where she died intestate, in possession of the land, in 1814, leaving no issue but her two grandsons, the children of the Countess Barziza, and the defendants Portia and Cornelia, her nieces, who would be her heirs-at-law, if no such issue were living. From this summary statement, it is clear, that the two sons of the Countess Barziza are aliens to the commonwealth of Virginia, and of course, cannot take the estate in question, by descent from their grandmother, unless their disability, is removed by the treaty of 1794. For though an alien may take an estate, by the act of the parties, as, by purchase; yet he can never take by the act of the law, as, by descent, for he has no inheritable blood. But the *objection now supposed to exist, is, that under *461] these circumstances, although the grandsons cannot, as aliens, take by descent; yet they answer in some sort, to the description of "heirs," and therefore, prevent the estate from descending to the nieces, who have a legal capacity to take, because, strictly speaking, they are not heirs. The |