Banks v. Walker , 3 Barb. Ch. 438 ( 1848 )

The Chancellor.

The first and most important question in this case, admitting that the plaintiff in the ejectment suit was duly naturalized in 1834, and that he sustained the.relationship which he supposes he did to Denis McCarthy deceased,' is whether he could take real property by descent from the decedent, under the provisions of the revised statutes; the parents of Denis McCarthy deceased never having been citizens of the1 United States.

It is a well known principle of the common law that an alien can neither himself inherit lands from a person who is not. an alien, nor can he transmit lands by descent to any other person. Nor by the common law could a natural born subject or citizen transmit lands by deseen t to another, mediately, through the blood of an alien. Thus in the case of grandfather, father and son, if the father was an alien, whether he was or was not living at the time of the descent cast, the grandfather could not transmit lands by descent to his grandson; although both of them were natural born subjects or citizens, or had been duly naturalized. But if the person who died seised of real estate had inheritable blood, such real estate would descend to his next heir who had such inheritable blood ; although the person who would otherwise have been the heir of the decedent was an alien. Thus if the deceased had two sons, and the eldest was an alien and the youngest was a natural born subject or citizen, the alienage of the eldest son, who otherwise would have been the heir at law of his father, would not prevent the real estate of the father from descending to the youngest son, as heir at law. These principles of the common law are admitted by all the English judges who delivered opinions in the important case of Collingwood v. Pace, in the exchequer chamber, in May, 1664. (1 Vent. Rep. 413. O. Bridgman's Rep. 414. 1 Sid. Rep. 194. 1 Keble, 579, 581, 485, 588, 603, 605, 670,671, 699,705.) The only question upon which Sir Orlando Bridgman and two other judges differed with Lord Chief Baron Hale and the six other judges was, whether the descent from one brother to another was immediate, or was only through their father who was an alien. The opinion of the lord chief baron prevailed in that case, and upon that question; so that it became the settled law in England that the alienage or attainder of the father did not prevent one of his sons from inheriting directly from another. Lord Hale, however, in his opinion, as reported at length by Yeutris, says the descent between brothers differs from all other collateral descents whatsoever, and is immediate; and to entitle them to inherit from each other they must be of the whole blood. That the uncle is preferred in descent before the brother of the half Mood, because that is a mediate descent, mediante patre. (J. Vent. 424.)

This disability of natural born or naturalized subjects to innerit from each other, where they were obliged to trace their pedigree or relationship through the blood of an alien, was removed, however, in England, by the statute.il and 12 William 3, chapter 6. (1 Evans’ Stat. 228.) But that statute, as it was decided by the court for the correction of errors in the case of Jackson v. Fitz Simmons, (10 Wend. Rep. 9,) was never in force in this state. And the question now arises, whether the twenty-second section, of the chapter of the revised statutes relative to the descent of real property, is broad enough to cover the case now under consideration. That section provides that no person capable of inheriting under the provisions of that chapter shall be' precluded from such inheritance by reason of the alienism of any ancestor of such person. (1 R. S. 754.) This unquestionably removed the disability arising from the alienism of the father and grandfather of Denis McCarthy of Oneida county, the plaintiff in the ejectment suit which has been brought for the recovery of the mortgaged premises. But to enable him to trace his pedigree and consanguinity as collateral heir to,Denis McCarthy, the decedent, who died seised of the mortgaged premises, he must trace it mediately through the blood of the father of the latter, an alien; and who wTas not an ancestor of the person who is now claiming to be the heir at law of the decedent. Thus in the case of Edward Courtenay, great grandson of Edward the 4th, and whose father and grandfather had been attainted of treason, it was held that previous to the act restoring him in blood, his second and third cousins, the descendants of his four great aunts, who were his next of kin of the blood of his father and grandfather, could not have inherited from him; because they would have been compelled to trace their pedigree and relationship to him through the at-tainted blood of his father and grand father. (3 Coke’s Inst. 241,)

I am aware that the term collateral ancestors is sometimes used to designate uncles and aunts, and other collateral antecessors of the person spoken of; who are not in fact his ancestors. But the word ancestors, in its ordinary import and meaning, only includes those from whom the person spoken of is lineally descended, either on the father’s or the mother’s side. And whenever this word is intended to be used in a sense which is different from its ordinary import of lineal ascendants, or in such enlarged sense of antecessors, so as to embrace all the blood relatives of the person referred to who have preceded him, it is qualified, or enlarged, by some other term ; to show that it is not used in its natural sense merely. Thus in the act of October, 1553, which restored in blood the son of Henry Courtenay, the attainted Marquis of Exeter, he is restored in blood as well as son and heir to his father the Marquis, as to all and every other collateral and lineal ancestor. The term ancestor is enlarged in the same way in the statute 11 and 12 William 3, ch. 6, before referred to. And there are also other words used in the statute last referred to, showing clearly the intention of the lawmakers to remove the disability arising not only from the alien blood of the ancestors of the person claiming to be entitled to real estate by descent, but also from the alienage of the ancestors of the deceased person who was lastseised of the estate. For that statute declares that all and every person or persons, being natural born subjects, shall and may lawfully inherit, and be inheritable, as heir or heirs, to any honors, manors, lands, tenements or hereditaments, and may make their pedigrees and titles by descent from any of their ancestors lineal or collateral; although the father or mother, or other ancestor, of such person or persons, by, from, through or under whom he, she or they shall make or derive their title or pedigree was, is, or shall be, an alien, &c. (1 Evan's JStat. 229.)

The disability of blood of the ancestors of the person from whom the inheritance is to come, being removed, by that statute, in express terms, as well as the disability of the ancestors of the person claiming such inheritance as heir, the estate, in England, descends in the same manner as if all the ancestors, either of the deceased or of his heir at law, through whom it is necessary for such heir to trace his relationship by blood to the decedent, had been natural born subjects. But as our statute only removes only the disability of the alienism of ancestors of the person claiming the inheritance from the person last seised, it does not enable the claimant, in this case, to make his title and pedigree mediately through the alien blood of the father of Denis McCarthy the decedent, who was not an ancestor of such claimant.

Again ; I have doubts whether the alleged naturalization of the claimant is not fatally defective, if the certificate produced on the argument, is a correct transcript of the record of naturalization. ■ For it appears'to show, upon its face, that a declaration of intention had not been made three years before, as required by the first clause of the first section of the act of April, •1802, to establish an uniform rule of naturalization ; but that the alien had only reported his arrival in the United States; which he was not required to do, subsequent to the act of May, 1828. (4 Story's Laios, 2145.) The last mentioned act having repealed the first section of the act of March, 1816, which required the certificate of the declaration of intention to be re cited at full length in the record of naturalization, it is only necessary to state the fact that such previous declaration had been made. And the record of naturalization will then be conclusive evidence of the regularity of the proceedings, and that all the preliminary steps had been complied with ; provided such record does not show the contrary upon its face. But in this case I am inclined to think the record, upon its face, shows that what was supposed to be a declaration of intention under oath, was nothing but the registry of the arrival of the alien within the United States; which was formerly required to be made, under the second section of the act of 1802, before that section was repealed in May, 1828. The certificate produced upon the hearing before me is in such an imperfect form, however, that it is difficult to say precisely what did form the record of naturalization. For that reason I do not intend to express any definite opinion upon the question as to the validity of the naturalization of the claimant. If, as I suppose, however, it is clearly inferable from the record of naturalization that the alien had not, at, least three years before his admission by the court of common pleas in Saratoga county, declared on oath his in-. tention to become a citizen of the United States, and to renounce all allegiance to any foreign prince or sovereignty, and particularly to the king of Great Britain, by name, as required by the act of 1802; but that the court had mistaken the registry of the arrival of the alien in the United States for such declaration of intention, I think the naturalization is invalid. If the record upon its face is valid, however, it is conclusive as to the regularity of the proceedings, and of the naturalization of the alien; and such record cannot be contradicted by extrinsic proof that no such declaration of intention had in fact been made.

But even if the plaintiff in the ejectment suit was duly naturalized, and could claim as heir at law of Denis McCarthy the decedent, through the alien blood of the father of the latter, it formed no valid defence to this foreclosure suit. For the defendant Walker wholly failed in establishing the allegation in his answer, that Mrs. McCarthy falsely and fraudulently represented to him, at or before the sale, that all the heirs at law of her deceased husband were aliens at the time of his death; so that his real estate had escheated. Even if she bad made representations of that kind to him, the fact that she had made them in her petition to the legislature, affords presumptive evidence that she really believed such to be the case; and there is no proof to the contrary. Nor is there any evidence that she ever saw or spoke to the appellant, at or before the master’s sale, or that she had any communication whatever, written or oral, with him. His bid upon the property at such sale could not have been affected by the formal recitals contained in a deed which was given some weeks afterwards. And as the property was sold without warranty, the purchaser took the same at his own risk. He cannot therefore refuse to pay tot share of the purchase money which belonged to Mrs. McCarthy merely because the interest which he supposed he was acquiring in the property failed in part; and while he continues to possess and enjoy the property under his purchase.

Here the title to the property did not wholly fail, in consequence of a mutual mistake of all parties upon a matter of fact. For Mrs. McCarthy, in any event, was entitled to a life estate ‘ in one third of the property; for her dower interest therein. And if the appellant was not willing to ran the risk as to the residue of the title, which was supposed to have" been acquired under .the release from the commissioners of the land office,' he should have insisted upon covenants of warranty. Or, rather, he should not have bidden thereon at the saleas it is fairly to be inferred from the case that the master put up the property and sold it at the risk of the purchaser as to the title. For it is not to be supposed the master would warrant the title to property in which he had no interest; or that Mrs. McCarthy would warrant it, for the purpose of enhancing the amount of the purchase money for the benefit of Mrs. Baht, who was entitled to the half thereof. Her own interest in the proceeds of the sale she could protect, without .running that risk as to Mrs. Bant’s share, by bidding in the" property herself, if it was likely to be sold under what she supposed its real value to a purchaser who assumed the risk of the title; as she was authorized to do so under the order of the vice chancellor who directed the sale.

The objection in the answer that the plaintiff in the ejectment suit should have been made a party to this bill of foreclosure, so that his claim to the property might have been settled and determined in this suit, was wholly untenable. For as he claimed adversely to the complainants, as well as to the mortgagor, and by a title which, if valid, was paramount to both, the validity of his claim could not have been litigated in this suit. And if he had been made a party defendant he might have demurred for want of equity as to him. The.defence set up in the answer, therefore, entirely failed, and the decree appealed from must be affirmed, with costs.