21 U.S. 1 (1823), Green v. Biddle

Citation:21 U.S. 1, 5 L.Ed. 547
Party Name:GREEN and Others v. BIDDLE.
Case Date:February 27, 1823
Court:United States Supreme Court

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21 U.S. 1 (1823)

5 L.Ed. 547

GREEN and Others



United States Supreme Court.

February 27, 1823


THIS was a writ of right, brought in the Circuit

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Court of Kentucky, by the demandants, Green and others, who were the heirs of John Green, deceased, against the tenant, Richard Biddle, to recover certain lands in the State of Kentucky, in his possession. The cause was brought before this Court upon a division of opinion of the judges of the Court below, on the following questions:

1. Whether the acts of the legislature of the State of Kentucky, of the 27th of February, 1797, and of the 31st of January, 1812, concerning occupying claimants of land, are constitutional or not; the demandants and the tenant both claiming title to the land in controversy under patents from the State of Virginia, prior to the erection of the district of Kentucky into a State?

2. Whether the question of improvements ought to be settled under the above act of 1797, the suit having been brought before the passage of the act of 1812, although judgment for the demandant was not rendered until after the passage of the last mentioned act?

The ground, upon which the unconstitutionality of the above acts was asserted, was, that they impaired the obligation of the compact between the States of Virginia and Kentucky, contained in an act of the legislature of the former State, passed the 18th of December, 1789, which declares, 'that all private rights, and interests of lands within the said District' (of Kentucky) 'derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State.' This compact was

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ratified by the convention which framed the constitution of Kentucky, and incorporated into that constitution as one of its fundamental articles.

The most material provisions in the act of 1797, which were supposed to impair the obligation of the compact of 1789, and therefore void, are the following:

1. It provides that the occupant of land, from which he is evicted by better title, shall, in all cases, be excused from the payment of rents and profits accrued prior to actual notice of the adverse title, provided his possession in its inception was peaceable, and he shows a plain and connected title, in law or equity, deduced from some record.

2. That the successful claimant is liable to a judgment against him for all valuable and lasting improvements made on the land prior to actual notice of the adverse title, after deducting from the amount the damages which the land has sustained by waste or deterioration of the soil by cultivation.

3. As to improvements made, and rents and profits accrued, after notice of the adverse title, the amount of the one shall be deducted from that of the other, and the balance added to, or subtracted from, the estimated value of the improvements made before such notice, as the nature of the case may require. But it is provided, by a subsequent clause, that in no case shall the successful claimant be obliged to pay for improvements made after notice, more than what is equal to the rents and profits.

4. If the improvements exceed the value of the

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land in its unimproved state, the claimant shall be allowed the privilege of conveying the land to the occupant, and receiving in return the assessed value of it without the improvements, and thus to protect himself against a judgment and execution for the value of the improvements. If he declines doing this, he shall recover possession of his land, but shall then pay the estimated value of the improvements, and also lose the rents and profits accrued before notice of the claim. But to entitle him to claim the value of the land as above mentioned, he must give bond and security to warrant the title.

The act of 1812 contains the following provisions:

1. That the peaceable occupant of land, who supposes it to belong to him in virtue of some legal or equitable title, founded on a record, shall be paid by the successful claimant for his improvements.

2. That the claimant may avoid the payment of the value of such improvements, at his election, by relinquishing the land to the occupant, and be paid its estimated value in its unimproved state.

Thus, if the claimant elect to pay for the value of the improvements, he is to give bond and security to pay the same, with interest, at different instalments. If he fail to do this, or if the value of the improvements exceeds three fourths of the unimproved land, an election is given to the occupant to have a judgment entered against the claimant for the assessed value of the improvements, or to take the land, giving bond and security to

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pay the value of the land, if unimproved, by instalments, with interest.

But if the claimant is not willing to pay for the improvements, and they should exceed three fourths of the value of the unimproved land, the occupant is obliged to give bond and security to pay the assessed value of the land, with interest; which if he fail to do, judgment is to be entered against him for such value, the claimant releasing his right to the land, and giving bond and security to warrant the title.

If the value of the improvements does not exceed three fourths of the value of the unimproved land, then the occupant is not bound (as he is in the former case) to give bond and security to pay the value of the land; but he may claim a judgment for the value of his improvements; or take the land, giving bond and security, as before mentioned, to pay the estimated value of the land.

3. The exemption of the occupant from the payment of the rents and profits, extends to all such as accrued during his occupancy, before judgment rendered against him in the first instance: but such as accrue after such judgment, for a term not exceeding five years, as also waste and damage, committed by the occupant after suit brought, are to be deducted from the value of the improvements, or the Court may render judgment for them against the occupant.

4. The amount of such rents and profits, damages and waste, and also the value of the improvements, and of the land without the improvements,

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are to be ascertained by commissioners, to be appointed by the Court, and who act under oath.


The cause was argued at February term, 1821, by Mr. Talbot and Mr. B. Hardin, for the demandants, no counsel appearing for the tenant.

Feb. 16th, 1821.

They contended, that the acts of the State legislature, in question, were inconsistent with the true meaning and spirit of the compact of 1789, their avowed scope and object being to charge the existing condition of the parties litigant, respecting the security of private rights and interests of land, within the territory of Kentucky, derived from the laws of Virginia prior to the separation. These acts do not merely attempt to alter the mode of prosecuting remedies for the recovery of rights and interests thus derived, (which possibly they might do,) but essentially affect the right and interest in the land recovered. They seek to accomplish this, by diminishing or destroying the value of the interest in controversy, by compelling the successful claimant and rightful owner of the land, to pay the one half, and, in some instances, the entire value of the land recovered; not the actual value of the amelioration of the land, while held by the occupying claimant, but the expense and labour of making the improvements.

Both the acts are framed in the same spirit and with the same object; both are adapted to change the relative condition of the parties, to the great prejudice of the rightful owner. The principal object in view in the act of 1797, was to exempt the occupant from his liability for waste committed by him, or rents and profits received by him, prior

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to the commencement of the suit for the land, although he may, when he first took possession, have had full notice of the plaintiff's title, and consequently be a malae fidei possessor. The act of 1812, purporting to be in amendment of the former act, with the avowed purpose of still further protecting the interests of the occupant, completely exempts him from all liability for waste committed, or for rents and profits received, before the judgment or decree in the suit. In no possible case can the right owner recover more than five years' rent, although the litigation may, and frequently does, last a much longer period; whilst he is subjected to the payment for all improvements made at any period of the suit, down to the time of final judgment, to be set off against the amount of his claim for rents and profits, abridged and limited as it is by this act.

The object of the compact was plainly to secure to all persons deriving titles under the then existing laws of Virginia, the entire and perpetual enjoyment of their rights of property, against any future legislative acts of the State of Kentucky, which it was foreseen might be passed under the influence of local feelings and interests. The compact did not merely intend to secure the determination of the titles to land by those laws, but also the actual enjoyment of the rights and interests thus established. It did not intend to give the true owner a right to recover, and then to couple that right with such onerous conditions as to make it worthless: to compel him to repurchase his own land, by indemnifying the occupant, (often

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a malae fidei possessor,) not for his expenses and labour in improving the value, but frequently in the deterioration of the land, to the great injury of the owner. The 'rights and interests,' of which the compact speaks...

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