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OWINGS V. NORWOOD'S LESSEE, 9 U. S. 344 (1809)

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Owings v. Norwood's Lessee, 9 U.S. 5 Cranch 344 344 (1809)

Owings v. Norwood's Lessee

9 U.S. (5 Cranch) 344


In an action of ejectment between two citizens of Maryland for a tract of land in Maryland, if the defendant set up an outstanding title in a British subject which he contends is protected by the treaty, and therefore the title is of the plaintiff, and the highest state court in Maryland decides against the title thus set up, it is not a case in which a writ of error can lie to the Supreme Court of the United States.

It is not "a case arising. under a treaty." The Judiciary Act must be restrained by the Constitution of the United States.

Error to the Court of Appeals of Maryland, being the highest court of law and equity in that state, in an action of ejectment brought by the defendant against the plaintiff in error, both parties being citizens of Maryland, for a tract of land in Baltimore County called "The Discovery," being part of a tract of land called Brown's Adventure, originally patented for 1,000 acres to Thomas Brown in the year 1695, who conveyed to John Gardsby, who conveyed to Aaron Rawlins in 1703, who mortgaged in fee to Jonathan Scarth, a London merchant, by deed of bargain and sale in 1706, with a proviso to be void upon payment of 800 sterling, with interest, on 13 May, 1709. Scarth and his heirs were always British subjects resident in England, and never were in Maryland, but Scarth was charged with the quit rents in the Lord Proprietor's debt books up to the time of the Revolution. Rawlins, however, by his will, in 1741, devised the land specifically to some of his children, without taking any notice of the mortgage. In 1732, Littleton Waters attached, and obtained judgment of condemnation against the land for a debt due to him from Scarth, but never took out any execution upon the judgment, and by deed of lease and release assigned all his right in the land to the Baltimore company, under whom the plaintiff in error claims.

In October, 1794, Norwood obtained an escheat warrant to affect the tract called Brown's Adventure upon suggestion of a defect of heirs of Brown, the original patentee. In June, 1800, he obtained a patent from the state founded upon the proceedings under that warrant, for 520 1/2 acres, being part of Brown's Adventure, with an addition of 26 acres of vacant land, and thereupon brought his action of ejectment against Owings. Upon the trial, the original defendant,

Page 9 U. S. 345

in order to show an existing title out of the plaintiff, contended that the mortgage to Scarth was protected from confiscation by the British treaty of 1794, and was still a security for the money to the representatives of Scarth, who were proved to be still living in England.

"But the court was of opinion that on the expiration of the time limited in the mortgage for the payment of the money, a complete legal estate of inheritance vested in the mortgagee liable to confiscation, and was vested in the state by virtue of the Act of Confiscation of October session, 1780, c. 45, and the act of the same session (c. 49) (to appoint commissioners), subject to the right of redemption in the mortgagor and his heirs, and that the British treaty cannot operate to affect the plaintiff's right to recover in this ejectment."

The verdict and judgment of the general court being affirmed in the Court of Appeals of Maryland and being against the right claimed under the treaty, Owings sued out his writ of error under the provisions of the 25th section of the Judiciary Act, vol. 1, p. 63, which enacts that a final judgment in the highest court of a state in a suit

"where is drawn in question the construction of any clause of a treaty, and the decision is against the right claimed under such clause of the treaty, may be reexamined and reversed or affirmed in the Supreme Court of the United States. "

Page 9 U. S. 347

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