1912.] OF THE UNITED STATES. 347 



The situation had, however, become comphcated when there came 

 before the Supreme Court the title of Lord Fairfax to these lands 

 in the Northern Neck of Virginia. Fairfax died in 1781, a citizen 

 of Virginia; in 1782, statutes were passed reciting his death and the 

 devolution of the estate upon alien enemies, sequestering the quit 

 rents in the tenants' hands, and providing for making entries upon 

 vacant lands within the Northern Neck. After the treaty of peace, 

 an Act was passed in 1785 which recited that no mode had been 

 adopted to enable those who had made entries in accordance with 

 the Act of 1782 to obtain titles, and which then enacted that grants 

 should be given by the Commonwealth. The defendant claimed 

 under a State patent issued pursuant to this Act. Under the will of 

 Lord Fairfax, those estates were devised to one Denny Fairfax, a 

 British subject. Denny Fairfax himself died during the pendency 

 of the suit. Mr. Justice Story delivered the opinion of the Court. 

 He held, first, that the title of Lord Fairfax in 1781 was free from 

 doubt and in this followed the State decisions. He held, secondly, 

 that at common law Denny Fairfax, taking as devisee and not as 

 heir-at-law, " had a complete, though a defeasible title by virtue of the 

 devise." He held, thirdly, that the common law had not been altered 

 by reason of the Virginia statutes. Inasmuch therefore as those 

 acts rendered necessary by the common law to vest title in the Com- 

 monwealth had been unperformed, the defeasible title remained in 

 Denny Fairfax. Mr. Justice Story then continued: 



" The real fact appears to have been, that the legislature supposed that 

 the Commonwealth were in actual seizin and possession of the vacant lands 

 of Lord Fairfax, either upon the principle that an alien enemy could not take 

 by devise, or, the belief that the Acts of 1782, ch. 8, and ch. 33, had already 

 vested the property in the Commonwealth. In either case it was a 

 mistake. . . . 



" Now, we cannot yield to the argument that Denny Fairfax had no title, 

 but a mere naked possession or trust estate. In our judgment, by virtue of 

 the devise to him he held a fee simple in his own right. At the time of the 

 commencement of this suit (in 1791) he was in complete possession and 

 seizin of the land. That possession and seizin continued up to and after the 

 treaty of 1794, which being the supreme law of the land, confirmed the title 

 to him, his heirs and assigns, and protected him from any forfeiture by 

 reason of alienage. 



" It was once in the power of the Commonwealth of Virginia, by an 



