45 Ind. App. 330 | Ind. Ct. App. | 1909
On June 7, 1904, appellee filed in the court below its second amended information to recover, under §3941 Burns 1908, Acts 1903, p. 184, of the appellants, and to quiet title to, certain real estate in the city of Indianapolis, which real estate was owned at the time of his death by John Lehman, who died intestate on July 21, 1894, a naturalized citizen of the United States and a resident of Marion county, Indiana, and who left surviving him certain heirs, all of whom were then, and such of them as are still alive and the descendants of those who' are dead ai’e, residents and citizens of the republic of Switzerland. A trial was had by the court, and a decree entered in favor of appellee.
The errors assigned and not waived challenge the correctness of the conclusions of law numbered one, two and three.
Section 3941, supra, or so much thereof as is necessary for the determination of the question here involved, is as follows: “All other aliens [other than those having declared their intention, etc., as provided in §3940 Burns 1908,
Upon said findings the court stated its conclusions of law, in substance, as follows: (1) That §3941, supra, is not in conflict with any provision of the treaty between the United States and Switzerland, ratified on November 8, 1855; (2) that the real estate has escheated to the State of Indiana for the common school fund; (3) that the claims of the defendants are a cloud upon the title of said State of Indi
Appellants insist that Article Y of said treaty makes provision for two distinct classes of aliens, to wit: Those who are, by the laws of the state or canton, entitled to hold or inherit real estate, and those who, on account of being aliens, are not permitted to hold real estate. The treaty recognizes the right of either country to deny to foreigners the right to hold or inherit real estate; but, by the provisions of said treaty, where they do inherit, their rights are governed by the provisions relating to personal property, and not under the last clause thereof, which provides for a limitation such as the state or canton may establish.
3. The question in this case is whether the statute in question is in' conflict with said treaty between the United States and the Swiss Confederation. We think it is firmly settled, except so far as limitations have been placed on the inherent sovereignty of the states by treaty, that the state may deny aliens the privilege of inheriting lands; and it follows that when it grants it, it may annex to the grant any conditions which it supposes
Said treaty provides for two different classes of laws: (1) Where the laws of the state permit aliens to hold or inherit, and (2) where they are not permitted to hold. In the latter case the treaty expressly provides that the state or canton may fix the term in which to sell said property. Were the construction insisted on by appellants to be placed upon the treaty there would be no need of the last clause, because in every case in which they could inherit they would fall within said first clause. By the laws of our State aliens are not permitted to hold real estate, and, consistent with the last clause of said treaty, the time in which they may transfer it has been limited. The court did not err in its conclusions of law.
Judgment affirmed,