Ellice v. Winn , 12 Wend. 342 ( 1834 )

By the Court,

Nelson, J.

The only question presented by the demurrer to the replication is, whether the inhibition to lease, in the law of 1817, was removed by the act of 1822.

The former act gave to the plaintiff a capacity to take, hold and convey any real estate within this state, of which Alexander Ellice died seised, with the exception of the power to lease; the latter invests him with the same capacity as possessed by any natural born or naturalized citizen to take any real estate within this state, either devise, descent or purchase, and to hold or dispose of the same. The second section gives to the first a retrospective effect as it regards any claim by previous purchase, devise or descent. It is clear, if the law of 1817 had not been in existence, the title of the plaintiff would become perfect and absolute to the lands there referred to, by reason of the purchase from the widow and heirs of' his father, recited in the preamble to that law, and we are not aware of any principle or reason which will prevent this operation, notwithstanding its existence. If the legislature intended to except the real estate held under the law of 1817 from that of 1822, they would have said so in terms. This must have appeared to them manifestly necessary, as the latter act put the plaintiff upon a footing with natural born citizens, in point of capacity, to take, hold and convey real estate both as to the past and future, thereby removing every and all disabilities by reason of alienism. It perfected all past titles, and enabled him to acquire new titles.

Since the act of 1822, 1 can perceive no objection to the plaintiff deriving title to the premises in question, under that act; and if so, his power of leasing is indisputable. This construction is also in harmony with the liberal spirit of that act. Such a sweeping power would not have been granted, if the legislature had intended that the restriction of the act of 1817 should continue.

Judgment for plaintiff.