Jackson ex dem. Folliard v. Wright, 4 Johns. 75

Jackson ex dem. Folliard v. Wright

4 Johns. 75 | N.Y. Sup. Ct. | 1809

Van Ness, J.

delivered the opinion of the court. The lessors of the plaintiff having, in the first instance, made out a sufficient title to a moiety of the premises in question, by the award of the Onondaga commissioners, we are to inquire, how far the defence relied upon has been supported. This defence is, that a subsisting title has been shown in Lydia Henry, which it is supposed she acquired by virtue of the act of the 3d April, 1804.

The legislature, probably, passed that act upon a suggestion, that the lot in question had escheated to the state, on the ground that Thomas Nelson, who had purchased it from Folliard, left none but alien heirs; and certainly, without being aware, that this was a case coming within the provision of the treaty of amity and commerce between the United States and Great Britain, concluded in 1794. By the 9th article of that treaty, “ it is agreed, that British *79subjects, who now hold lands in the territories of the United States, and American citizens, who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates, and titles therein; and may grant, sell, or demise the same to whom they please, in like manner as if they were natives ; and that neither they nor their heirs or assigns, so far as may respect the said lands, and the legal remedies incident thereto, shall be regarded as aliens.”

Thomas Nelson, it appears, emigrated from Ireland, where it is to be presumed he was born, to the United States, in 1779 ; and resided here until his death, in 1798. Having emigrated after the declaration of our independence, he must be regarded as an alien, unless it is shown, by competent proof, that he became a citizen, after that era, by naturalization. But that fact has not been shown. Naturalization is matter of record, and, perhaps, ought never to be presumed; but even if that were allowable, there is nothing in the present case to authorise such a presumption. If it Were necessary to give an opinion as to the legal effect of the act of 1804, we might, for the purpose of upholding the title thereby granted to Lydia Henry, infer, from the language adopted therein, that Nelson had been permitted to purchase and hold lands in this state, by some of the many acts of our legislature, by which such permission has been given to aliens. It would, however, be going too far, to infer from this, that he had also been admitted to all the municipal rights enjoyed by citizens only.

Nelson, therefore, must be deemed to have been a British subject in 1794; and it appearing that he had purchased the lands in question previously to that period, the treaty settled his right thereto, and, upon his death, it descended to his heirs, notwithstanding they were aliens. The intention of the contracting parties to that treaty was, that the citizens and subjects of each should be quieted in the enjoyment of their estates, in the same manner as if they and their heirs had been native citizens.

*80The case states, that Nelson, when he died, left three sisters and a brother living in Ireland, and that Lydia Henry, one of the sisters, then was, and still is, a feme covert. These four heirs, therefore, all inherited this property, and had a complete vested title thereto, on the death of Nelson, in 1798. The treaty is the paramount law; and the act of 1804 being contrary to it, inasmuch as it gives the estate to one of the four heirs in exclusion of the rest, is inoperative.

The only remaining point to be examined, is, whether any of these heirs are barred of their right to recover, by the limitation in the act for the appointment of the Onondaga commissioners. No dissent from the award has been entered, and more than two years had elapsed from the making the award to the commencement of this suit; so that all the heirs would be barred, were it not that the act saves the rights of married women. This saving extends to the right of Lydia Henry only, who was a feme covert, but the right of the others is gone, as absence from the state is not a saving in the act.

It results, therefore, that the defendant has shown a subsisting title in Lydia Henry, to an undivided fourth part, and the lessors of the plaintiff are entitled to recover their undivided eighth parts of the lot in question.

Judgment accordingly.