Den ex dem. Colgan v. McKeon

24 N.J.L. 566 | N.J. | 1854

The opinion of the court was delivered by

Elmer, J.

The lessors of the plaintiff are alien brothers of Bryan Colgan, who was also an alien, and died seized of the premises in dispute, in the year 1834, having purchased the property in the year 1829. It is admitted by the counsel of the plaintiff, that the lessors are not entitled to the inheritance by virtue of the statutes of descent in force when their brother died, in consequence of their alienage; but they insist that according to the true construction of the act of 1817,' to authorize aliens to purchase and hold real estate in this state, (El. Dig., 6,) now incorporated in the revised act of 1846, (Rev. Stat., 1,) alien heirs were entitled to inherit to aliens holding by virtue of that statue. This act provides in substance, that it shall be lawful for an alien to purchase lands, and to have and to hold the same to him and his heirs and assigns forever, as fully to all intents and purposes as any natural born citizen of the United States may or can do.

It was held by the supreme court of Massachusetts, in the case of Com. v. Heirs of Hanbury, 3 Pick, 224, that where the state had granted land to an alien by name and to his heirs and assigns, it was estopped from denying the title of heirs who. were aliens. In the state of New York, it has been held that when an alien is allowed specially by statute to take and hold lands, to him and his heirs, such alien has thereby conferred on him a capacity to transmit by inheritance to his alien offspring, and that they have equally a capacity to take; and these decisions are now urged upon us as proper to be followed in construing our act. (Goodell v. Jackson, 20 John, 707; Jackson v. Etz, 5 Cow., 321; Jackson v. Adams, 7 Wend., 367; Aldrich v. Manton, 13 Wen., 458.) But this construction was given to statutes which simply authorized the alien to hold to him and his heirs, and was evidently greatly influenced by the peculiar circumstances attending the leading case of Goodell v. Jackson. Our statute adds that the alien shall hold, “ as fully to all intents and purposes as any natural born citizen may or can do.” These words show beyond question, I think, the intention of the legislature to give to the alien a capacity to take and hold real estate, precisely as if he was a natural born citizen, and not otherwise. A natural born citizen could not then hold so that aliens could inherit from him. Unless then we discard those words they necessarily restrict the heirs of an alien to such persons as would be his heirs if he was a citizen. There is no plainer principle of construction, than that all the words of a statute ought to be allowed their full natural meaning, unless that would be necessarily repugnant to the plain intention of the legislature, or would lead to manifest absurdity or wrong. Now I think the words ought to be very plain and explicit, which would induce us to suppose that the legislature meant to give to an estate in fee simple, vested in an alien, incidents which would not belong to it if he was a citizen. It appears by the case of Spratt v. Spratt, 1 Peters, 343, that an act of the legislature of Maryland provided in express terms, that a foreigner might hold lands which should be transmitted to and be inherited by his heirs or relations as if they were citizens, and the necessary result was, that land which the intestate purchased while he was an alien descended to his alien heirs, while other lands which he purchased after he was naturalized did not so descend.

The opinion of Justice Nevius, in the case of Yeo v. Mercereau, 3 Harr, 404, has been relied on as sustaining the before cited New York cases. It is true that he refers to them and intimates his opinion that a similar construction should he put on our act of 1817. This construction, however, was not concurred in by the other judges, and not eing necessary for the decision, was only an obiter dictum. With great respect for the learned judge, I must differ from him, and hold that the legislature meant precisely what they said, that is, to give to an alien the capacity to take and hold real estate as a natural born citizen might do.

An act passed in 1845, (Pam. Acts, 92,) now the third section of the revised act of 1846, (Rev. Stat., 2,) providestiiat aliens to whom any lands may have descended from any ancestor, whether alien Or not, since 1817, or would have-descended, or may or would hereafter descend, in case such person or persons claiming by descent were natural born citizens, may have and hold the same as fully as any natural bbrn citizen might, may, or can do. This act being retrospective, covers the case of the lessors of the plaintiff, and Would enable them to recover had it not been for a private hct pásséd in 1836, which recites that Colgan had died without issü'ó; and without lawful heirs who could inherit, and ehact's that the estate of ’Colgan in the property should be-vested in his widow, Ann Colgan, her heirs and assigns, under whom 'the defendants claim. Much effort was naturally made by the plaintiff’s counsel to get rid of the influence of this act On the case, but I 'think without success. If the construction given to the act of 1817 is correct, the act oí 1836 was passed when the lessors of the plaintiff had no-claim whatever, not being heirs who could inherit, and they cannot now object that they are not named in it or that they had no notice of it.

The case of Jackson v. Adams, 7 Wend., 367, decides that if a natural-born citizen or foreigner entitled to hold lands to him and his heirs, dies without heirs, his lands escheat to the state, but the state has no right to enter and take possession until office found, and that a grant, even by a legislative act, can convey no title. I am not able to concur with this opinion. It is not supported by any adjudged case, and is, I think, contrary to well established principles. Chief Justice Hornblower held, in the ease of O’Hanlin v. Den. Spencer, 36, that upon the death of a man without heir or devisee, the title to his lands, eo insianti, and before office found, vested in the state ; and the same doctrino was held by Justice Randolph,- -when the case went before the court of errors, (1 Zab., 593.) The cases show that when an alien dies, at common law, as he can have no heirs, and the law, qua nihil frustra, never casts the freehold upon one who cannot keep it, his land instantly and without inquest of office, escheats and vests in the state. But a citizen, and an alien since the act of 1817, may have heirs, and I am not satisfied that the proposition stated by those judges is correct to the extent they carry it. . Being, however, entirely satisfied that the act of 1836, vested the land in Ann Colgan and her heirs, whether the title of the state was complete before office found or not, I have not thought it necessary to pursue the inquiry. When that act was passed, Bryan Colgan had died without heirs capable of inheriting, the land had escheated and was liable to be seized by the state, by due proceedings in pursuance of the act concerning escheats (Rev. Stat., 342.) Beyond doubt, a general act might have been passed, vesting all such estates in the widow or in any other relatives. Had it been necessary for the state or the widow to resort to legal proceedings to obtain possession, those proceedings must perhaps have been under the act concerning escheats. Instead of passing a general act, the legislature gave this specific land to the widow. This was clearly within the legislative power. It amounted simply to a declaration that an inchoate right should become a vested and complete right. It was not like a grant by the .legislature of property to which the state had no title, but which belongs in fact to another person, which may well be hold void, upon the ground that it is no part of the legislative power to take the land of A and vest it in B.

It would seem from the case of Doe v. Redfern, 12 East., 96, that there are ancient acts of parliament which restrain the king from granting laud, in certain cases, until Ms right is ascertained and appears of record. No such acts exist in this state, and if they did, they would not stand in the way of a legislative grant, which would virtually repeal them. What it was competent for the legislative power to do indirectly by general acts, it might do, in a case like this, where no adverse interest was concerned, by a direct and private act. Strangers, who had no legal right to the inheritance cannot afterwards question such an act, whatever might be its effect as against a person in actual possession.

I am therefore of opinion, that the verdict should have been for the defendants, and that they are entitled to the postea.

Haines, J., concurred.