Per Curiam. Johns, C. J.
We are unanimously of opinion we are not to enter a nonsuit in this stage of the cause. We will give our opinions on the other point if necessary, but we may have more light on this subject before the cause is over.
Bayard. We wish to know the ground of the Court’s opinion.
Johns, C. J.
We may differ in our reasons, but we consider this an important point, and we will refuse the nonsuit because we leave the plaintiff without remedy, but if we give our opinion at the end of the business, there may be an exception. I have an opinion, which I will not deliver until it becomes necessary, for I may hear something that may change my opinion.
[294]*294Defendants gave in evidence an Act of Assembly of the State of Maryland passed October 23, 1711, authorizing the condemnation of land for the Nanticoke Indians, divesting the title of the then holders “when such land is laid out and paid for”; the return of the Commissioners named in the Act, dated December 15, 1711, containing the courses and distances and valuation of a tract called Greenland; also an Act of Assembly of said state, May 24,1768, directing a sale of said lands; deeds to Mitchell and Forman by the Commissioners named in the Act of November 17, 1760; but showed no title from these grantees to the present defendants.
Plaintiff showed the Greenland patent of 1675, the course and distances of which left out the vacancy included in plaintiff’s patents between it and Broad Creek; the second course of which patent is followed by the words, “down the aforesaid creek side — perches thence” etc. Also the Acts of 1692, c. 17, 1716, c. 1 and c. 3, 1704, c. 42, s. 1, to show that Lord Baltimore in 1711 was not in Maryland destitute of political powers and did not consent to the Act of 1711, but that his proprietary rights were acknowledged; the courses, if the return made by the Commissioners in 1711 varied from those of the patent, leaving less vacancy near the creek, and those of the deeds to Mitchell and Forman still less.
Plaintiff’s counsel. The lines of the patent called Greenland leave out two hundred and eighty-three acres binding on the creek. The circumstance that a creek was near the patent is not a reason that it must bind on the water, unless there was some intention that the creek should be the boundary expressed in it. Where the lines are described to go down a creek, or the water courses, or as binding with it etc., it is unnecessary that the courses and distances should pursue the meanders of the water; but in this case, on the only line of the patent which suits the water, it calls for it and afterwards names it no more, but the expressions rather exclude the idea that what is said of the second line should be applicable to the rest. In the State of Maryland the practice has been generally in modern times to name one boundary only, that the Proprietary might not be defrauded. If the lands claimed by us are not within the patent called Greenland, they were not condemned, for although the later runnings may enclose part of the lands, yet the Proprietary was never paid for them, and the Act of Assembly only divesting the title “when such land is laid out and paid for,” his title never was divested; and estate cannot vest (except when transferred by livery) until a condition precedent is performed, and this is clearly a condition of that sort from the manifest intention of the Act.
[295]*295To divest property without compensation is contrary to the principles of the social compact, 2 Dali. 310-315. And statutes divesting private property, being an exercise of the highest legislative authority, should be construed strictly. Lord Baltimore was only a private citizen at the passing the Act, and his property could not have been divested by the terms of the Act until he was paid for it. His contract with Mr. Penn transferred these lands to him, which, never having been granted by either Proprietary, were subjected by the laws of this state to be located and patented.
The defendants have not shown a subsisting title, for they have neither shown a title from Mitchell nor Forman, nor even from the Indians, whereby former possessions can be united with their present possession, and therefore the title of plaintiff, if a legal one, must prevail. If the lands in dispute had not even been vacant before plaintiff’s location of them, yet he must recover. For although the Land Office laws contemplate vacant land, yet any man who has no legal title to his lands may so far consider them vacant as to take a title for them under the state which will be good against all the world but a claimant under a more ancient title. In Harris’s Lessee v. Gordon, the plaintiff’s title being defective, he was obliged to secure his anciently patented land under the laws of the state, and then brought ejectment against the defendant who claimed under another patent, which the jury thought did not include the land, and plaintiff had a verdict. Lands to which there exist no legal title may as properly be called vacant as those for which a title has never been made, and by this construction much inconvenience is prevented to those who have lands the title to which is defective, without prejudicing the public interest in clear cases of escheat.
Defendants’ counsel. The laws of the Province of Maryland not objected to, but ratified in legal form, were sovereign and binding, and therefore Baltimore’s interest was bound by them; and the returns of the Commissioners under the respective Acts which have been read, are to be taken as a part of the law, or at least equally effectual. The possession of the Indians for so long a period by virtue of the Act of Assembly was a sufficient title. The patent called Greenland begins at the creek, the second course it is admitted binds with the creek, and when the courses are to leave the creek and to return around the lands granted, it calls for the mouth of Whale Creek. The Commissioners have run different courses along the creek and in each instance supposed they were running the patent; it must therefore have been considered in former days as patent land quite to the creek. But whether defendants have shown a subsisting title or not out [296]*296of the plaintiff’s, the plaintiff cannot recover, because his proceedings are null and void, for the lands being once granted were not the subject of the Land Office laws and could not be legally surveyed or patented under them. This question has undergone a legal adjudication in the case of Mr. Wells in the High Court of Errors and Appeals..
(Charge). Gentlemen of the jury, it has become our duty to observe on what has been said, and it is for you to decide upon it. This action is brought to recover lands in dispute under two patents obtained under the Land Office Acts. The right of plaintiff to recover must depend upon the validity of his title under those Acts. If his title is good, he ought to recover, if not he ought not to have your verdict in his favor. We have paid attention to the arguments, and we think the point a clear one, and we have no doubt. Whether the lands in this case were vacant, and such as could be taken up, is the question. We think they were not of that description. These lands having been taken up under the laws of Maryland, they were not subject to be taken up by the laws of this state.
It may not be improper to touch on another point, that is as to the location of Greenland.
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Per Curiam. Johns, C. J.
We are unanimously of opinion we are not to enter a nonsuit in this stage of the cause. We will give our opinions on the other point if necessary, but we may have more light on this subject before the cause is over.
Bayard. We wish to know the ground of the Court’s opinion.
Johns, C. J.
We may differ in our reasons, but we consider this an important point, and we will refuse the nonsuit because we leave the plaintiff without remedy, but if we give our opinion at the end of the business, there may be an exception. I have an opinion, which I will not deliver until it becomes necessary, for I may hear something that may change my opinion.
[294]*294Defendants gave in evidence an Act of Assembly of the State of Maryland passed October 23, 1711, authorizing the condemnation of land for the Nanticoke Indians, divesting the title of the then holders “when such land is laid out and paid for”; the return of the Commissioners named in the Act, dated December 15, 1711, containing the courses and distances and valuation of a tract called Greenland; also an Act of Assembly of said state, May 24,1768, directing a sale of said lands; deeds to Mitchell and Forman by the Commissioners named in the Act of November 17, 1760; but showed no title from these grantees to the present defendants.
Plaintiff showed the Greenland patent of 1675, the course and distances of which left out the vacancy included in plaintiff’s patents between it and Broad Creek; the second course of which patent is followed by the words, “down the aforesaid creek side — perches thence” etc. Also the Acts of 1692, c. 17, 1716, c. 1 and c. 3, 1704, c. 42, s. 1, to show that Lord Baltimore in 1711 was not in Maryland destitute of political powers and did not consent to the Act of 1711, but that his proprietary rights were acknowledged; the courses, if the return made by the Commissioners in 1711 varied from those of the patent, leaving less vacancy near the creek, and those of the deeds to Mitchell and Forman still less.
Plaintiff’s counsel. The lines of the patent called Greenland leave out two hundred and eighty-three acres binding on the creek. The circumstance that a creek was near the patent is not a reason that it must bind on the water, unless there was some intention that the creek should be the boundary expressed in it. Where the lines are described to go down a creek, or the water courses, or as binding with it etc., it is unnecessary that the courses and distances should pursue the meanders of the water; but in this case, on the only line of the patent which suits the water, it calls for it and afterwards names it no more, but the expressions rather exclude the idea that what is said of the second line should be applicable to the rest. In the State of Maryland the practice has been generally in modern times to name one boundary only, that the Proprietary might not be defrauded. If the lands claimed by us are not within the patent called Greenland, they were not condemned, for although the later runnings may enclose part of the lands, yet the Proprietary was never paid for them, and the Act of Assembly only divesting the title “when such land is laid out and paid for,” his title never was divested; and estate cannot vest (except when transferred by livery) until a condition precedent is performed, and this is clearly a condition of that sort from the manifest intention of the Act.
[295]*295To divest property without compensation is contrary to the principles of the social compact, 2 Dali. 310-315. And statutes divesting private property, being an exercise of the highest legislative authority, should be construed strictly. Lord Baltimore was only a private citizen at the passing the Act, and his property could not have been divested by the terms of the Act until he was paid for it. His contract with Mr. Penn transferred these lands to him, which, never having been granted by either Proprietary, were subjected by the laws of this state to be located and patented.
The defendants have not shown a subsisting title, for they have neither shown a title from Mitchell nor Forman, nor even from the Indians, whereby former possessions can be united with their present possession, and therefore the title of plaintiff, if a legal one, must prevail. If the lands in dispute had not even been vacant before plaintiff’s location of them, yet he must recover. For although the Land Office laws contemplate vacant land, yet any man who has no legal title to his lands may so far consider them vacant as to take a title for them under the state which will be good against all the world but a claimant under a more ancient title. In Harris’s Lessee v. Gordon, the plaintiff’s title being defective, he was obliged to secure his anciently patented land under the laws of the state, and then brought ejectment against the defendant who claimed under another patent, which the jury thought did not include the land, and plaintiff had a verdict. Lands to which there exist no legal title may as properly be called vacant as those for which a title has never been made, and by this construction much inconvenience is prevented to those who have lands the title to which is defective, without prejudicing the public interest in clear cases of escheat.
Defendants’ counsel. The laws of the Province of Maryland not objected to, but ratified in legal form, were sovereign and binding, and therefore Baltimore’s interest was bound by them; and the returns of the Commissioners under the respective Acts which have been read, are to be taken as a part of the law, or at least equally effectual. The possession of the Indians for so long a period by virtue of the Act of Assembly was a sufficient title. The patent called Greenland begins at the creek, the second course it is admitted binds with the creek, and when the courses are to leave the creek and to return around the lands granted, it calls for the mouth of Whale Creek. The Commissioners have run different courses along the creek and in each instance supposed they were running the patent; it must therefore have been considered in former days as patent land quite to the creek. But whether defendants have shown a subsisting title or not out [296]*296of the plaintiff’s, the plaintiff cannot recover, because his proceedings are null and void, for the lands being once granted were not the subject of the Land Office laws and could not be legally surveyed or patented under them. This question has undergone a legal adjudication in the case of Mr. Wells in the High Court of Errors and Appeals..
(Charge). Gentlemen of the jury, it has become our duty to observe on what has been said, and it is for you to decide upon it. This action is brought to recover lands in dispute under two patents obtained under the Land Office Acts. The right of plaintiff to recover must depend upon the validity of his title under those Acts. If his title is good, he ought to recover, if not he ought not to have your verdict in his favor. We have paid attention to the arguments, and we think the point a clear one, and we have no doubt. Whether the lands in this case were vacant, and such as could be taken up, is the question. We think they were not of that description. These lands having been taken up under the laws of Maryland, they were not subject to be taken up by the laws of this state.
It may not be improper to touch on another point, that is as to the location of Greenland. Plaintiff’s title depends on the location of the Greenland patent, for if the runs of the latter bind upon Broad Creek, there was no room for the plaintiff’s patents. Perhaps an observation or two may throw some light on this subject, for some facts are admitted which may guide us in discovering its original position. As to the beginning of Greenland, it is acknowledged to be at the creek. The second line also runs with the creek. It does not call for the creek afterwards, but it runs to a boundary at Whale Creek. It is contended as there are no expressions calling for the creek, it does not bind with it; but you are not to consider the courses and distances only, for the place is important. Suppose they run within a few feet of the creek; there is nothing more uncertain than the compass. If there is so much uncertainty, how can plaintiff give that satisfaction that is necessary to the jury? Is it probable that this survey ran so far from the creek a century and better ago? The original location was in 1675, but in 1711 it appears this land was located by Commissioners, and though not directly the same, yet is it not to be inferred that the Commissioners intended to locate this tract as Greenland and considered it as going to the creek? Is it to be supposed we understand it as well as they did almost a century ago?
The location is a fact for you to decide on; but the other questian is a question of law, that is,, that lands secured by an Act of [297]*297the State of Maryland in this manner [are] not subject to be patented under the laws of this state.
Verdict not guilty.