Commonwealth v. Heirs of André , 20 Mass. 224 ( 1825 )

The opinion of the Court was read as drawn up by

Parker C. J.

It having been determined by the verdict of the jury, that the persons claiming to be the heirs of Pierre Matthieu André, and those claiming to be the heirs of Jean Frangois Billon, are such, according to the laws of descent in France and in this country, the only question is, whether on account of their alienage, or that of their several fathers, they are prevented from inheriting the land which was purchased by André of the commonwealth, which prosecutes this suit. Without undertaking to decide what would be the effect of the alienage of these heirs under the several treaties which have been cited, we decide the cause upon the ground that the commonwealth, having conveyed the land to André, then a French subject, and received the full consideration therefor, cannot reclaim the land from him or his heirs for the cause of alienage in him or them. The deed was made by a committee fully authorized thereto by a resolve of the legislature, and by the deed the commonwealth has covenanted to warrant and defend André, his heirs and assigns, against the lawful claims of all persons whatsoever. This deed must operate as a rebutter, as it would if an individual were the grantor ; and with more reason, because the commonwealth is not liable to an action. The commonwealth, if the land were recovered, would feel itself bound to repay the consideration money, with interest. This would be a claim which could not be resisted without degrading the country. But there is no need of resorting to this remedy ; for the deed of the commonwealth to the very persons now defending as heirs to André, to whom and to whose neirs the grant was made, is, we think, an estoppel against setting up the alienage of those persons as the ground of recovery.¹

The judgment of the Court therefore is, that the commonwealth take nothing by their inquest.

1 See per Story J., Carver v. Jackson, 4 Peters’s Sup. C. R. 87; Penrose v. Griffith, 4 Binn, 331; Garwood v. Dennis, 4 Binn. 314; Commonwealth v. Pejepsaii Proprietors, 10 Mass. R. 155; Stearns on Real Actions, (3d ed.) 179; Gerrish v. Bearce, 11 Mass, R. (Rand’s ed.) 300, note a.

If an alier purchases with the King's license, it seems that he may hold effectually. See 14 Hen. 4, 20; Hargr. Co Litt. 2 b, note 2.