By the Court, Beardsley, Ch. J.
The patentee, Francis Legge, acquired title to the land in suit in 1769, and retained it until his death in 1788 or 89. He was never a citizen of this state, but remained a subject of the British crown to the close of his life. It is not necessary to inquire whether the people of this state could have divested his title on the ground of alien-age, (Jackson v. Lunn, 3 John. Cas. 109 ; Blight’s Lessee v. Rochester, 7 Wheat. 535,) for no such attempt was ever made ; and the objection, if at any time available against him, was obviated by the sixth article of the treaty of peace of 1783. (Jackson v. Lunn, supra; Orr v. Hodgson, 4 Wheat. 453; Society, &c. v. New Haven, 8 id. 484; Orser v. Hoag, 3 Hill, 84.) The effect of this article, as these authorities show, was not only to bar the escheat of land held by British subjects, but to give them a capacity to transmit the same by descent. Such descent, however, must be as in ordinary cases to a citizen, not [550]*550an alien, although there may be an exception ,to this principle where the land was owned by a subject of the British crown at the commencement of the revolutionary war, and the alien, claiming to take as heir, was then in life. (Jackson v. Lunn, supra,; Kelly v. Harrison, 2 John. Cas. 29.) But this exception, .if well founded, is inapplicable to the present case; for it does not appear that the nephew and piece of the patentee, who .claimed as his heirs, were born as early as the 4th of July, 1776. The patentee, although an alien, had a capacity to transmit title to this land by descent, but his nephew and niece were .incapable of acquiring title in that manner on account of their alienage. No right or title to this land passed to them on the .decease of their uncle, ánd their, deed to Brown gave him no interest whatever in the premises.
The treaty of 1794 ba.s no possible bearing on this case, for the plain reason that title to -the land was not then vested in any British subject.- That treaty (article 9) applied only to titles then existing in such subjects, (Blight’s Lessee v. Rochester, supra,) which was not the fact with regard to this land. The patentee had then been dead several years, and upon the papers before us it cannot be pretended with any show of plausibility, .that the title to these lots was then vested in any subject of the British crown. That treaty therefore has no application to the case in judgment.
It was urged by counsel op the argument that a law of this state, enacted-in 1845, gave to the nephew and niece of the patentee a capacity to take this land by descent ; and I admit that if they were living when the act was passed, such may have been its effect. (Laws of 1845, p. 95, § 4.) But this construction .of the act, if correct, -will not aid the plaintiffs, whose alleged title is founded on ,a deed.executed by the nephew and niece in 1.820. When the patentee died, which was in 1788 or .89, they were incapable of taking title from him as his hejrs, nor had they any such .capacity when the deed referred to was executed. Grant that by this act of 1845 they were "made capable of taking,” and that they did thereupon take as heirs of the deceased patentee, this can have no effect upon the case in [551]*551hand. If they thus acquired title in 1845, it will not follow that their deed, executed twenty-five years previous to that time, transferred such title to Brown, the grantee in that deed. The deed is not shown to have contained covenants of any sort, and could only operate upon such right as the grantors had when it was executed. As far as appears they had none whatever at that time, and if they acquired title in virtue of the act of 1845, there is nothing to show that they have since parted with it. We were referred to the ninth section of this act, which it was contended made the deed of 1820 effective as a conveyance of whatever title vested in the grantors in virtue of the provisions of that act. But we think the section has no such effect. It may make grants theretofore executed by aliens, as effective as if made by citizens, but it does not assume to give them any greater effect or operation. It does not in terms or spirit, assume to make a quit-claim deed executed in 1820, effective to convey a title which first vested in the grantors in 1845. The alleged paper title of these plaintiffs cannot, therefore, be in any view sustained.
There is another ground, however, on which, I think the plaintiffs, or some of them, and in the present posture of the question it is immaterial which, were entitled to recover. The defendant holds as tenant to Foote & Stevens who about 1841, purchased the possession, as the bill of exceptions states, of Thomas J. 0. Curtiss, who had been in possession from a period as early, at least, as 1826, although he, at no time, claimed to have any title to the land. In 1826, an action of ejectment for the recovery of these lots was pending in favor of Brown, jne of the present plaintiffs, against Curtiss, but which was then stopped and ultimately abandoned, in consequence of an agreement entered into by them. By that agreement it was stipulated that the action against Curtiss should abide the i esult of another action of ejectment then pending against one Spear, and which, as is stated in the agreement, involved'the validity of the title of Brown; it being expressly declared by said agreement that if judgment, in the suit against Spear, should be rendered in his favor, Curtiss should quit possession [552]*552of said land or purchase the same of Brown at a fair valuation: and if judgment should be rendered against Spear, the said Brown was to discontinue his suit against Curtiss. On making this arrangement Brown stayed all proceedings in his suit against Curtiss, and defended, at his own cost and expense, the suit against Spear, in which judgment as in case of nonsuit was rendered in his favor in 1843. It was not pretended on the argument, nor, as far as can be collected from the bill of exceptions, on the trial of the present cause, that the agreement of 1826 was founded on any-thing like fraud, misrepresentation or mistake, or that it was any thing but a fair and voluntary arrangement between the parties thereto, and such as they deemed for their mutual benefit and advantage. This being its character it should be faithfully observed by the parties, and it is the duty of the court to carry it into full effect according to its terms and spirit. It was in substance an agreement, that in a certain event, to wit, the rendition of judgment in favor of Spear in the action pending against him, Curtiss would purchase the two lots of land then in his possession, and which are now in suit, of Brown, or would give up possession to him. The contingent event upon which this agreement then depended, has since occurred, and Curtiss thereby became bound absolutely, to make the purchase or surrender possession of the premises. He did neither, having previously sold his possession to Foote & Stevens, undér whom the defendant entered and held, for them and in their right, w’hatever it was. Neither Curtiss, Foote, Stevens, or the defendant, has at any time claimed title to the land, nor, on the trial, did the defendant set up or offer to show title in any third person. The possession of Curtiss was confessedly without title, and Foote & Stevens purchased but his bare possession. They stand in the place of Curtiss, and have such right only as he had.
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By the Court, Beardsley, Ch. J.
The patentee, Francis Legge, acquired title to the land in suit in 1769, and retained it until his death in 1788 or 89. He was never a citizen of this state, but remained a subject of the British crown to the close of his life. It is not necessary to inquire whether the people of this state could have divested his title on the ground of alien-age, (Jackson v. Lunn, 3 John. Cas. 109 ; Blight’s Lessee v. Rochester, 7 Wheat. 535,) for no such attempt was ever made ; and the objection, if at any time available against him, was obviated by the sixth article of the treaty of peace of 1783. (Jackson v. Lunn, supra; Orr v. Hodgson, 4 Wheat. 453; Society, &c. v. New Haven, 8 id. 484; Orser v. Hoag, 3 Hill, 84.) The effect of this article, as these authorities show, was not only to bar the escheat of land held by British subjects, but to give them a capacity to transmit the same by descent. Such descent, however, must be as in ordinary cases to a citizen, not [550]*550an alien, although there may be an exception ,to this principle where the land was owned by a subject of the British crown at the commencement of the revolutionary war, and the alien, claiming to take as heir, was then in life. (Jackson v. Lunn, supra,; Kelly v. Harrison, 2 John. Cas. 29.) But this exception, .if well founded, is inapplicable to the present case; for it does not appear that the nephew and piece of the patentee, who .claimed as his heirs, were born as early as the 4th of July, 1776. The patentee, although an alien, had a capacity to transmit title to this land by descent, but his nephew and niece were .incapable of acquiring title in that manner on account of their alienage. No right or title to this land passed to them on the .decease of their uncle, ánd their, deed to Brown gave him no interest whatever in the premises.
The treaty of 1794 ba.s no possible bearing on this case, for the plain reason that title to -the land was not then vested in any British subject.- That treaty (article 9) applied only to titles then existing in such subjects, (Blight’s Lessee v. Rochester, supra,) which was not the fact with regard to this land. The patentee had then been dead several years, and upon the papers before us it cannot be pretended with any show of plausibility, .that the title to these lots was then vested in any subject of the British crown. That treaty therefore has no application to the case in judgment.
It was urged by counsel op the argument that a law of this state, enacted-in 1845, gave to the nephew and niece of the patentee a capacity to take this land by descent ; and I admit that if they were living when the act was passed, such may have been its effect. (Laws of 1845, p. 95, § 4.) But this construction .of the act, if correct, -will not aid the plaintiffs, whose alleged title is founded on ,a deed.executed by the nephew and niece in 1.820. When the patentee died, which was in 1788 or .89, they were incapable of taking title from him as his hejrs, nor had they any such .capacity when the deed referred to was executed. Grant that by this act of 1845 they were "made capable of taking,” and that they did thereupon take as heirs of the deceased patentee, this can have no effect upon the case in [551]*551hand. If they thus acquired title in 1845, it will not follow that their deed, executed twenty-five years previous to that time, transferred such title to Brown, the grantee in that deed. The deed is not shown to have contained covenants of any sort, and could only operate upon such right as the grantors had when it was executed. As far as appears they had none whatever at that time, and if they acquired title in virtue of the act of 1845, there is nothing to show that they have since parted with it. We were referred to the ninth section of this act, which it was contended made the deed of 1820 effective as a conveyance of whatever title vested in the grantors in virtue of the provisions of that act. But we think the section has no such effect. It may make grants theretofore executed by aliens, as effective as if made by citizens, but it does not assume to give them any greater effect or operation. It does not in terms or spirit, assume to make a quit-claim deed executed in 1820, effective to convey a title which first vested in the grantors in 1845. The alleged paper title of these plaintiffs cannot, therefore, be in any view sustained.
There is another ground, however, on which, I think the plaintiffs, or some of them, and in the present posture of the question it is immaterial which, were entitled to recover. The defendant holds as tenant to Foote & Stevens who about 1841, purchased the possession, as the bill of exceptions states, of Thomas J. 0. Curtiss, who had been in possession from a period as early, at least, as 1826, although he, at no time, claimed to have any title to the land. In 1826, an action of ejectment for the recovery of these lots was pending in favor of Brown, jne of the present plaintiffs, against Curtiss, but which was then stopped and ultimately abandoned, in consequence of an agreement entered into by them. By that agreement it was stipulated that the action against Curtiss should abide the i esult of another action of ejectment then pending against one Spear, and which, as is stated in the agreement, involved'the validity of the title of Brown; it being expressly declared by said agreement that if judgment, in the suit against Spear, should be rendered in his favor, Curtiss should quit possession [552]*552of said land or purchase the same of Brown at a fair valuation: and if judgment should be rendered against Spear, the said Brown was to discontinue his suit against Curtiss. On making this arrangement Brown stayed all proceedings in his suit against Curtiss, and defended, at his own cost and expense, the suit against Spear, in which judgment as in case of nonsuit was rendered in his favor in 1843. It was not pretended on the argument, nor, as far as can be collected from the bill of exceptions, on the trial of the present cause, that the agreement of 1826 was founded on any-thing like fraud, misrepresentation or mistake, or that it was any thing but a fair and voluntary arrangement between the parties thereto, and such as they deemed for their mutual benefit and advantage. This being its character it should be faithfully observed by the parties, and it is the duty of the court to carry it into full effect according to its terms and spirit. It was in substance an agreement, that in a certain event, to wit, the rendition of judgment in favor of Spear in the action pending against him, Curtiss would purchase the two lots of land then in his possession, and which are now in suit, of Brown, or would give up possession to him. The contingent event upon which this agreement then depended, has since occurred, and Curtiss thereby became bound absolutely, to make the purchase or surrender possession of the premises. He did neither, having previously sold his possession to Foote & Stevens, undér whom the defendant entered and held, for them and in their right, w’hatever it was. Neither Curtiss, Foote, Stevens, or the defendant, has at any time claimed title to the land, nor, on the trial, did the defendant set up or offer to show title in any third person. The possession of Curtiss was confessedly without title, and Foote & Stevens purchased but his bare possession. They stand in the place of Curtiss, and have such right only as he had. If Curtiss had remained in possession he would now be bound to surrender it to Brown, for such was the agreement entered into; and the defendant, who represents his lessors, Foote & Stevens, is as much bound by that agreement as Curtiss himself. The agreement certainly did not create the technical relation of [553]*553landlord and tenant, but, being an agreement to purchase the land or surrender possession to Brown, it estops Curtiss and all persons standing in his place and stead, from controverting Brown’s right to the possession. (Jackson v. Ayers, 14 John. 224; Jackson v. Walker, 7 Cowen, 637.) If the contract had been procured by fraud, imposition or mistake on the part of Curtiss, it might not have bound him. (Jackson v. Spear, 7 Wend. 401.) But nothing of this .nature was shown, nor did Curtiss, or those who succeeded him, make any pretence of title or right to the land. Under such circumstances they cannot be allowed to question Brown’s right to the possession. As far as appears, he abided fairly by the agreement with Curtiss, and the event by which that agreement was to become absolute having occurred, Brown is entitled to the stipulated benefit. That benefit was a purchase of the land of him, or a relinquishment of the possession to him. But the purchase was not made, nor was the possession yielded ; this suit was, therefore, properly brought to gain possession of the land.
The judgment rendered in favor of Spear being as in case of nonsuit and not on the merits, it was urged on the argument that this was not such a judgment as was contemplated by the agreement between Brown and Curtiss. We think otherwise. Spear was defendant in the action referred to in the agreement, and he could in no way compel the plaintiff therein to bring his cause to a determination on the merits, for he might at any time abandon the action. According to the agreement, the sufficiency of Spear’s defence depended on the validity of the title of Brown, and if the plaintiff in that suit would not try his cause on the merits, the defendant therein could in no way compel him to do so. Curtiss had agreed to abide the result of that cause, without requiring it to be determined on the merits. He may have supposed that it would be so tried and disposed of, but he did not make that a condition in his agreement with Brown. All he insisted upon was, that judgment should be rendered in favor of Spear, in which event, no matter whether the judgment was by default or on the merits, he agreed to surrender possession, unless he chose to purchase the land of [554]*554Brown. Curtiss, therefore, if he desired to have the cause against Spear tried and determined, on the merits, was bound to see that it was só prosecuted as to require a decision of that description-. That, so far as is material to this agreement, was his concern, not Brown’s. The agreement is explicit, that if judgment was rendered in favor of Spear, Curtiss would either purchase or surrender possession to Brown. Such a judgment was rendered, and Curtiss should abide by his engagement. The land has not been purchased, and Brown’s right to the possession cannot now be questioned by the defendant, or by any one else holding under Curtiss. There should be a new trial.
Ordered accordingly.