7 N.H. 475 | Superior Court of New Hampshire | 1835
delivered the opinion of the court.
It is contended in this case on behalf of the respondent that the heirs of Nicholas Dorion, being aliens, took nothing in the land at the time of his decease — that nothing vested in the State for want of office found, and so nothing could be granted by the State — that congress has the exclusive power to give to aliens the rights of citizens, and therefore the legislature of a State has no power to give to aliens the capacity to hold lands — and that when John B. Dorion was naturalized, the whole estate vested in him.
It is very certain that an alien cannot take real estate by descent. 6 Johnson’s C. R. 360, Mooers vs. White; 4 D. & E. 300, Doe vs. Jones; 2 B. & C. 779, Doe vs. Acklam; 7 Wheaton 535; 5 B. & C. 771, Doe vs. Mulcaster; 1 Cowen 89, Sutliff vs. Forgey; 4 Cranch 321, Dawson’s lessee vs. Godfrey.
But an alien can take by purchase, and hold until office found. He can also convey. Com. Digest, ‘Alien,’ c. 4; Shep. Touch. 232; 6 John. C. R. 366; 12 Mass. R. 143, Fox vs. Southack; 7 Cranch 620; 1 Mass. R. 256, Sheafe
In England, when a subject seized oí lands dies without heirs, the lands revert to the original grantor, or lord of the fee. But although all lands are there holden mediately or immediately of the crown, yet as the king is not in all cases the immediate lord of the fee to whom the land of one who dies without heirs reverts, it is not quite clear, that when a subject dies without heirs his lands vest immediately in the crown without office found. But when it appears of record that the person so dying is the king’s tenant, the lands vest immediately in the crown without office. 12 East 96, Doe vs. Redfern; 4 Coke 54, The Warden and Company of Sadler’s case; 2 Bl. Com. 244: Plowden 229 and 481; Wright’s Tenures 58; Co. Litt. 1; Comyn’s Digest, “ Escheat,” A 1.
If an alien purchases lands and die, the lands instantly vest by escheat in the State without any inquest of office. Co. Lilt. 2, b ; 6 Johnson’s C. R. 366.
But while the alien lives, the lands cannot vest in the State without office found. 5 Coke 52, Page’s case; 1 Johnson’s Cases 399, Jackson vs. Beach.
In this State, the lands of which a citizen dies seized without heirs revert in all cases to the State, provided lie dies intestate.
Upon principle, it would seem that lands must, in such a case vest immediately in the State, without any inquest of office — as they do in England in the crown, when the king’s tenant dies without heirs. If no person appears to claim as heir, there is nobody to be made a party to the inquest; and nobody who is not a party, is bound. 4 Mason 268, Stokes vs. Dawes.
There may be cases in which an inquest of office might be expedient,- — as where some person is found in possession, claiming as heir or otherwise; but we are of opinion that an inquest of office is in no such case essential to vest the title in the State.
Bui when a State makes, aliens capable of taking lands by descent, within its own territory, this by no means makes them citizens; nor does it give them any capacity to take lands by descent, or any other capacity whatever in any other State.. Each State has the undoubted right to regulate the law.of descent within its own limits. .
The legislature of New-York has made aliens capable of taking land by‘descent in that State. 1 Cowen 89, Sutliff vs. Forgey. And it has been held, both in New-York and in Massachusetts, that a grant of land by the legislature to an alien and his heirs, enables the heirs, although aliens, to inherit. 5 Cowen 314, Jackson vs. Ets; 3 Pickering 224, Commonwealth vs. The Heirs of Andre & Bilton.
We are of opinion that the act of June 22, 1827, made the heirs of Nicholas Dorion capable of taking the land by descent, and that the land vested in those heirs immediately upon the passing of the act.
The question then is, whether the petitioner has shown, by competent evidence, the title of those heirs under whom she claims, vested in herself.
Had Isaac Winslow, junior, authority to convey the interest of Ibertson and wife ?
The respondent in this case sets up no title under Ibertson and wife. The power-of-attorney was shown to have been lost, and the subscribing witnesses were not inhabitants of
Under these circumstances, what proof of the execution and contents of the power-of-attorney ought, this petitioner to be required to produce ? : ■
The subscribing witnesses, not living in the State, she ought not to be compelled to produce, them. .There is another good reason why she should not be . compelled to produce them. They very probably put their names to the instrument as witnesses without knowing its contents ; and if called, as the instrument is lost, are. not very likely to be able to swear that a power-of-attorney was executed. And very probably at this distance of time they may have lost all recollection of the transaction. . -
When an instrument has beén lost, the declarations of him who executed it have. been, admitted as evidence. 3 Pick. 284, Davis vs. Spooner; 5 D. & E. 366, Bowles vs. Langworthy; 2 John. 451; 3 John. 477; 1 Green. 62, note; 5 Espin. N. P. C. 16, note.
If so,-the. testimony of the person who executed the instrument., when a credible witness, must be still better evidence. And we are of.opinion that the testimony of M. A. G. Ibertson was competent to prove the powér-of-attorney duly executed.
Was the evidence introduced competent to prove the execution of the power, which purported to be signed by M. A. Gilroy? ;
The subscribing witnesses are proved to have been residents in Boston in 1831, and it does not appear that they have ever been in this State. Proof of their hand writing was then competent evidence in this case. 1 Greenleaf 62, note; 5 Espin. N. P. 16, note; 1 Starkie 337.
Is the deed of the 20th November, 1828, so executed as to pass the estate ?
In this case, the deed is in the name of the principals, so that the only objection to it is, that it is not so executed as to make it the deed of the principals.
There is no particular form of words required to be used, provided the act be done in the name of the principal. 2 Starkie’s Ev. 477.
Where a deed was executed thus, “ For James Brown, M. Wilkes and seal,” it was held to be well executed. 2 East 142, Wilkes vs. Back.
It is not material that there should be more than one seal. 4 D. & E. 313, Ball vs. Dunsterville.
It is immaterial whether the names of the grantors are put at the bottom or the top of the writing, if in the whole instrument the grant purports to be their grant. 3 Merrivale 52, Ogilvie vs. Foljambe; 2 Starkie’s Ev. 605.
In this case, in testimony that the grantors who are named as such in the deed make the conveyance, the agent puts his hand and seal to the instrument. This seems to be tantamount to putting his hand and seal to the deed for them, which is sufficient.
We are of opinion that the deed is sufficient to pass the estate.
Was the evidence sufficient to prove the deed of April 16, 1829?
The witness testifies that the signatures to a certain deed, a copy of which he annexes to his deposition, are those of the grantor and the subscribing witnesses, of whom he was one. An original deed, of which the copy annexed to the deposition is an exact copy, is produced. It is not disputed that the instrument produced is an original deed. And we are of opinion that the circumstance that the copy is an exact copy of the deed, renders it sufficiently certain that the deposition relates to the deed produced. We, therefore, think
And we are, on the whole, of opinion that there must be judgment in favor of the petitioner,
