Foss v. Crisp ( 1838 )

Putnam J.

delivered the opinion of the Court. The first question to be considered is, whether the premises which were conveyed by Fuller and wife to Joseph Varney, were included in the deed of Joseph Varney to Parker.

The objection is, that in the deed to Parker, the grantor describes six of the estates by metes and bounds, and does not describe the seventh (the estate which Fuller and wife conveyed to Varney) by metes and bounds, but only by reference to the same deed as recorded in lib. 264, fol. 170, of the registry of deeds, of this county.

If the grantor had not taken the trouble to describe particularly the metes and bounds of the six several parcels of land, but had referred to a record of the same estates as containing a true description of the premises intended to be conveyed, such a conveyance would have been good, and the description contained in the records would by law be deemed to be incorporated and made a part of the conveyance. It is a question of intent. The grantor describes some of the par cels of land particularly, and refers to the records also. But the reference was unnecessary as to those. There was a double description as to those He omitted the particular description of the metes and bounds of the Fuller lot, but he referred to the records for the certainty of the description of that part of the granted premises, and the reference is to be considered as included in the conveyance. We think this mode of conveyancing is not expedient; for in case of the destruction of the records, the grantee might be put to great difficulty in proving his title. It is always better and more safe to describe the estate particularly in the conveyance, and not merely by reference to the records.

In the case before us, we are all satisfied that the Fuller estate was conveyed by Joseph Varney to Parker, with the other six parcels of estate contained in that deed. And it is agreed that Parker conveyed the whole of the same to Sarah Varney. Upon her decease' the same descended to her children and heirs.

It is found in the case, that Sarah, after the death, of her husband Varney, married Antonio Crisp, the tenant, by whom she had one child, Antonio Crisp junior, now living : and that Antonio Crisp was an alien, a native of Spain, and that he made his primary declaration of an intent to become a citizen of the United States, in the lifetime of Sarah his wife, and was in fact naturalized after her death.

And the question made for him is, whether or not he is entitled to hold the premises as a tenant thereof by the curtesy.

In the case of Wilbur v. Tobey, 16 Pick. 179, the Chief Justice, for the whole Court, stated the law to be without doubt, “ that an alien can- take real estate, by deed or devise, or other act of purchase, but cannot hold against the Commonwealth ; he therefore takes a defeasible estate, good against all except the Commonwealth, and good against them, until they institute proceedings, and obtain a judgment by inquest of office. But an alien cannot take by act of law, as descent, because the law will be deemed to do nothing in vain, and therefore it will not cast the descent upon one who cannot by law hold the estate.”

The doctrine laid down by the Chief Justice is maintained by all the bo< its which treat of the subject. Indeed the counsel for the tenant does not deny the general doctrine of the common law touching alienage, but courageously contends that it has been repealed by our own statutes, and that the ten ant is entitled to take and hold the premises demanded, as a tenant by the curtesy.

He contends that by the Revised Stat. c. 60, § 17, the tenant is clearly entitled. The provision is, “ when any man and his wife shall be seised, in her right of any estate of inheritance in lands, and shall have issue born alive, which might inherit the same, the husband shall, on the death of his wdfe, hold the lands for his life as tenant thereof by the cur tesy.” That was a revision of the St. 1783, c. 36, § 5, which provided, “ that when a man and his wife shall be seised of lands &c., in her right in fee, and issue shall be born alive of the body of such wife, that may inherit the same, and such wife shall die, the husband shall have and hole such estate during his natural life, as tenant by the curtesy.

The answer is very apparent. The statutes of the Commonwealth touching the descent of real estate, were intended to apply to citizens, and not to aliens, unless they were particularly named. For example, by the statute of 1783, c. 36, § 4, it is provided that the widow of the deceased shall in all cases be entitled to her dower in the real estate of her husband. Now that provision was intended to apply to widows who were citizens of the Commonwealth, and not to alien women who were widows. And the statute of 1812, c. 93, § 1, was made in favor of the latter class of widows. And it provides, “ that the widow of any citizen of the United States who may have been or who shall be an alien at the time of intermarriage with such citizen, shall be entitled to dower in her husband’s estate, in this Commonwealth, in the same manner as those who are now by law entitled to dower.” The Revised Stat. c. 60, § 14, provides that the alienage of a woman shall not bar her right of dower, excepting as to land conveyed by her husband, or taken from him - by execution, before the 23d of February, 1813 ; which was the date of the statute of 1812, c. 93, before cited.

But there has not been any corresponding provision m favor of the alien husband, who should have had issue by and who survived his wife, that he should be tenant by the curtesy, in the same manner as those who by law are entitled to be ten ants by the curtesy.

And it was further argued for the tenant, that as the statute of 1805, c. 90, § 4, provided that alienage should be no imped ment in the distribution of personal estate, but that the provision was not to extend to the descent of any real estate to an alien, and as the Revised Statutes repealed this last statute, therefore the alienage of the husband did not afterwards constitute any impediment to his taking as tenant by the curtesy after that repealing act, which was passed in February 1836, and before the death of the wife of the tenant.

We think the argument cannot be sustained. In the Revised Stat. c. 64, § 1, the provision of the statute of 1805, c. 90, § 4, was reenacted so far as that “alienage in any person, claiming a distributive share of personal estate, should be no impediment to his receiving the same share that he would have been entitled to, if he had been a citizen — but the clause in the 4th section of the statute of 1805, c. 90, viz. that the provision was not to extend to the descent of any real estate to an alien, was not contained in the Revised Statute last before cited. That negative clause was entirely unnecessary. The positive enactment was confined in its terms to the distribution of personal estate, and it could by no reasonable construction have been applied to the distribution of real estate to an alien. And when the statute was revised by the Revised Stat. c. 64, § l, the negative and more than useless provision was omitted, but the positive enactment was continued, providing that alienage should be no impediment in the distribution' of personal estate, and the impediment or disability of alienage as to taking real estate by descent or otherwise, was left as it was at the common law.

But it has been contended for the tenant, that by the making of his declaration of his intent to become a citizen, he had an inchoate right to citizenship in the life of his wife, and as it was completed after her death, it should relate back, so that the disability of alienage should be removed from the time of making and filing his preliminary declara uon This argument is answered by the statute of the Lmt ed Stales, (c. 47,) passed on March 26, 1804. The provision is, that where an alien shall die after he has made his preliminary declaration and “ before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States ; and shall be entitled to all rights and privileges, as such, upon taking the oaths prescribed by law.” But it is very clear that the alien himself does not become a citizen until he is actually naturalized. Until that time the common law disabilities of alienage continue, except as they are relaxed in favor of his widow and children by the statute of the United States, as is above stated.

The result is, that Sarah Crisp (formerly Varney) died seised of the whole of the demanded premises, that the same descended to her eight children, viz. to her seven children, the demandants, by her first husband, Joseph Varney, and to the other child, Antonio Crisp, by her second husband, the tenant.

The tenant, having been an alien at the death of his wife, cannot take the estate by the act of the law as a tenant by the curtesy, and he is to be defaulted; and the demandants are entitled to recover seven undivided eighth parts of the demanded premises, and are to have judgment rendered for them accordingly.