Brown v. Pearson

41 Iowa 481 | Iowa | 1875

Day, J. —

This case involves a construction of Sections 2488-2493 of the Revision of 1860. These sections first came before this court for construction in Krogan v. Kinney, 15 Iowa, 242, and it was there held that they do not confer upon aliens, nonresident of the United States, the capacity to inherit real estate. The same question again came before this court in Rheim v. Rollins, 20 Iowa, 45, in which, after a careful review of the various provisions of the statute, the same conclusion was reached, and the case of Krogan v. Kinney, supra, was approved.

In Purczell v. Smidt, 21 Iowa, 540, the question was again considered, Cole, J., holding that the statute in question confers upon every alien, wherever resident, the right to acquire real estate by descent, and that Krogan v. Kinney and Rheim, v. Robbins should be overruled. Dillon, J., concurred in the conclusion of the opinion of Cole, J., but was unwilling to be bound by the reasoning employed, or by the construction given the statute in detail. Lowe, Ch. J., and Wright, J. adhered to the construction of the statute as given in Krogan v. Kinney and Rheim v. Robbins. In Greenheld v. Stanforth, 21 Iowa, 595, the same judges were equally divided in opinion upon the same question.

The writer hereof determined the case of Rheim v. Robbins, when on the district bench, reaching his conclusion upon the same line of reasoning as that employed by Lowe, Ch. J., announcing the opinion of this court affirming the judgment below. He still entertains an abiding confidence in the correctness of the construction placed upon the statute in that case, and regards it as the only one which gives force and effect to all its provisions, but deems it unnecessary to repeat the argument which has already, in that case, been fully presented.

Beck, J., does not concur in the correctness of the construction of the statute adopted in Krogan v. Kinney and Rheim v. Robbins, but as it establishes a law of property, upon the faith of which money has been expended and titles have been acquired, he considers it unjust and unwise to adopt now a different construction. Cole, J., in view of the amendment of the statute, declaring the law now to be, as by him claimed in Purczell v. Smidt, does not wish to dissent from the conclusions now reached.

We all concur in the opinion that the judgment should be

Affirmed.