Harley v. State ex rel. Attorney-General , 40 Ala. 689 ( 1867 )

JUDGE, J.

Under the demurrer interposed in the court below, the following allegations of one of the pleas are to be taken as true: 1st, that Harley purchased the lands described in the information, on the 2d day of April, 1857, and that there was a conveyance to him of the title on that day; 2d, that, at the time of the said conveyance, Harley was an unnaturalized alien, but that previously thereto he had filed his declaration of intention to become a citizen of the United States, and was duly admitted to such citizenship on the 1st of November, 1860, by the judgment of the circuit court of Cook county, in the State of Illinois. These allegations present the merits of the main question involved, which we proceed to consider.

An alien may acquire lands by purchase, but not by descent ; and there is no distinction, whether the purchase be by grant or by devise ; in either event, the estate vests in the alien as a defeasible estate, subject to escheat at the suit of the government. He has complete dominion over the estate of which he is thus seized, until office found; may hold it against every one, even against the government, and may convey it to a purchaser — that is to say, may convey a defeasible estate only, subject to be divested on office found. The ancient rule of the common law was, that an alien could not maintain a real action for the recovery of lands, but he might, in such action, defend his title against all persons but the sovereign. It has been held, however, in North Carolina, if not in other States of the Union, that he may maintain ejectment. The common law was, also, that the king could not grant lands forfeited by alienage, until he was in possession by office found ; but, when the alien died, the sovereign was seized without office found, because, otherwise, the freehold would be in abeyance, as the alien could have no inheritable blood.

As to grants for the cause of alienage, by State legislation, without an inquest of office, Judge Story has said, “ That an inquest of office should be made in cases of alien-age, is a useful and important restraint upon public proceedings. It protects individuals from being harassed by numerous suits, introduced by litigious grantees. It enables the owner to contest the question of alienage directly, by a traverse of the office. It affords an opportunity for the public to know the nature, the value, and the extent, of its acquisitions pro defectu hceredis. And, above all, it operates as a salutary suppression of that corrupt influence which the avarice of speculation might otherwise urge upon the legislature. The common law, therefore, ought not to be deemed repealed, unless the language of a statute be clear and explicit for this purpose.” — Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603. But each State has the undoubted right to enact laws regulating the descent of, and succession to, property within its limits, and consequently to permit inheritance by or from an alien.

We refer to the following authorities, as sustaining the propositions of law hereinbefore announced : 2 Kent, 62-64; Fairfax’s Devisee v. Hunter's Lessee, 7 Cranch, 603; Orr v. Hodgson, 4 Wheaton, 453; Governeur's Heirs v. Robertson, 11 Wheaton, 332; Scanlan v. Wright, 13 Pick. 532; Montgomery v. Dorian, 7 New Hamp. 475; People v. Folsom, 5 Cal. 373; Rouche v. Williamson, 3 Iredell, 141; Waugh v. Riley, 8 Metcalf, (Mass.) 290; Wilbur v. Tobey, 16 Pick. 177; Etheridge v. Malempre, 18 Ala. 565.

When Harley purchased the land in controversy, and during the period of his alienage thereafter, he was seized of a defeasible estate in the premises, accompanied with all the incidents of ownership of such an estate. During the same period, the only right which the State could have in the premises was the right to have the land escheated, by a judicial proceeding in the nature of an inquest of office. This prerogative right of sovereignty was not asserted during the period of Harley’s alienage; but he was permitted to retain his estate, without molestation, until he had been admitted to full citizenship. This result effected an extinguishment of the right of the State to escheat the land, if such right existed, and perfected the title of Harley. As Sir Matthew Hale has said, “ The law is very gentle in the construction of the disability of alien-ism, and rather contracts than extends its severity.”— 2 Kent, 56-62. See, also, Jackson v. Beach, 1 Johnson’s Cases, 399; White v. White, 2 Met. (Ky.) 189.

Foreigners are admitted to the rights of citizenship, with us, on liberal terms; and the public policy of the United States, in regard to their becoming citizens, as shown by the naturalization laws of the government, is certainly in harmony with the main conclusion attained in the present case. — 2 Kent’s Com. 56.

2. It was contended in the argument, that the plea of naturalization is defective, in not averring compliance with the pre-requisites expressly made by the law conditions precedent to the admission to citizenship. It has been held, that it is not necessary that the record of naturalization should show that all the legal pre-requisites had been complied with, the judgment being conclusive of such compliance. — Starke v. Chesapeake Ins. Co., 7 Cranch, 420; Ritchie v. Putnam, 13 Wendell, 524; Spratt v. Spratt, 4 Pet. 406. It follows, that it is not necessary to do more in the plea, than aver the rendition of the judgment.

Judgment reversed, and cause remanded.