16 Wend. 617 | N.Y. Sup. Ct. | 1837
The plaintiff below married James Cummings, who was a resident of the city of New-York, on the 29th day of January, 1802, and both continued to reside there until his death in 1832. The plaintiff was an alien until the 16th October, 1829, when she was naturalized. The husband was a natural born citizen. The evidence in the bill of exceptions sufficiently establishes the fact, and the presumption of law would supply any defect if necessary, (the domicil of the wife following that of the husband,) that the plaintiff was an inhabitant of this state before the act of the 26th March, 1802, enabling aliens to purchase and hold real estate under certain re
It was insisted upon the argument by the counsel for the plaintiff below, that the principle adjudged in the case of Sutliff v. Forgey, 1 Co wen, 89, affirmed in error, 5 id. 715, was conclusive in her favor; and, after the most attentive consideration, I cannot but think it is so. There the husband had been naturalized on the 29th August, 1803, and made the purchase on the 4th January, 1804, the wife, the demandant, at the time being an alien, and continuing so until the commencement of the suit. The naturalization of the husband placed him upon the footing, in respect to acquiring and holding real estate, of a natural born citizen. 1 Black. Comm. 374. Bac. Abr. tit. Aliens, 129. 1 Inst. 89. 1 Cowen, 95. The position was there taken by the counsel for the demandant, that the naturalization of the husband operated to naturalize the wife; but this was denied by the court. And as judgment was given for her notwithstanding, it would seem to follow as a principle necessarily deducible from the case, that an alien widow of a natural born citizen would be entitled to her dower under like circumstances, because if entitled to dower in an estate purchased by the husband after naturalization, as he stands precisely upon the footing of a natural born citizen, the dower of the alien widow of the latter cannot consistently be denied. After naturalization, the enabling statutes were no way material or connected with the purchase, which was made by virtue of the authority derived from citizenship, as in the case of a natural born citizen.
This view is confirmed by the opinions of the judges in Sutliff v. Forgey. ■ The Chief Justice, after reciting the act of 1802, and the purchase made by the husband in
The decision in the court of errors was simply an affirmanee of the doctrine of the supreme court, and which was this: an alien widow of a naturalized husband is entitled to her dower out of lands of which he was seized, if she bring herself within the statutes of 1802 or 1808, enabling her to purchase and hold real estate at any time during the seizin of the husband: her right of dower in such case, attaches by reason of her capacity thus to purchase and hold. It is impossible to extract any different doctrine out of the case as decided either in the supreme court or in the court for the correction of errors, regarding the facts and opinions there given. The erroneous marginal note seems to have misled the revisers of the statutes, Chancellor Kent in his commentaries, and the late Chief Justice Savage, while deciding the case of Mick v. Mick, 10 Wendell, 381. It is now engrafted into the statutes, 1 R. S. 740, § 2, supposed by the revisers to have been adjudged in the above case, and taken from it. See notes of revisers to the section. Chancellor Kent observes, 4 Comm. 36, 7, that in New York, while the general rule is admitted that the alien widow even of a natural born citizen is not entitled to dower in her husband’s lands, yet, under the statute of 1802, the widows of aliens entitled by law to hold real estate-are held to be dowable, referring to Sutliff v. Forgey. The late chief justice in Mick v. Mick, remarks that “ in Sutliff v. Forgey, 1 Cowen, 80, it was held that the widow of an alien who purchased under this statute, (1802,) was entitled to dower.” It may be proper to observe, that the case of Mick v. Mick, was correctly decided according to the true exposition of the doctrine of Sutliff v. Forgey, notwithstanding the misapprehension of the learned chief justice, because, when the widow, who was an alien, became a resident of the state, no statute existed enabling her to purchase and hold land; and she had not complied with the terms of the act of 1825, Session Laws, 427, 1 R. S. 720, after, the passage of it, during coverture, or before the death of the husband. See reference to these statutes, 10 Wendell, 381.
The court put the right to dower upon the capacity conferred by the act upon the alien widow; that by reason of it, this right attached to the lands of the husband, the same as if she had been a citizen. The idea that the naturalization of the husband operated to naturalize the wife, was repudiated ; her rights were considered no greater in this respect, than those of the alien wife of a natural born citizen, who could not take dower at common law. They stood upon a footing with each other. It was therefore only upon the construction of the statutes above explained, that the widow could possibly have been considered entitled to dower; for if there had been nothing else in the case but the naturalization of the husband, as that only put him on a footing with a natural born citizen; and as the alien widow of a natural born citizen could not claim dower, the demandant must have failed upon the law as recognized and laid down by the court. The truth is, according to the principle of Sutliff v. Forgey, it is a matter of no moment, whether the husband is a natural born, or naturalized citizen; it is enough if . he is capable of purchasing and holding, or in other words, of being seized of the title to real estate. This capacity is of course essential to support a claim
II. The counsel for the plaintiff below also contended, that if the plaintiff was not entitled to her dower under the enabling statutes, she was so entitled by virtue of her naturalization of the 16th October, 1829, upon the ground of its retro-active operation; before discussing which proposition, it is proper to notice some preliminary objections taken to the record of naturalization. It is said to be void, because not made up in conformity to the act of congress, and two defects are specified: 1. That it does not appear that proof was exhibited before the court of the one year’s residence within the state where the court was holden, according to the act of 1802, § 1; and 2.‘That one of the witnesses testifying to the residence and character of the alien, was her husband. The record, as to the residence before the amendment was made, read as follows: “that the alien has resided within the limits and under the jurisdiction of the said United States for at least five years, immediately preceding the time of making this deposition, to wit, in the city of New-York one year at least.” The amendment added between the words “New-York” and “one,” as follows: “and within the state of New-York;” which words were contained in the original affidavit, the omission being a clerical error in making up the record. The act requires, that “ the court admitting such alien shall be satisfied that
III. It is also objected, that a feme covert cannot be naturalized without the concurrence of her husband. It was said by Mr. Justice Story, in Shark v. Dupont, 3 Peters, 248, the incapacities of femes covert provided by the common law, apply to their civil rights, and are for their pro-
IV. But, assuming the naturalization, in October, 1829, to have been valid, it is contended that it cannot operate retrospectively, so as to attach the right of dower to premises which were previously aliened by the husband, in 1802. The act of congress affords no great light to aid us in determining this point of the case; it merely declares, that upon complying with its provisions, the applicant shall “ become a citizen of the United States,” leaving the effect or measure of capacity thus conferred to the judgment of the law. Lord Coke says, that an alien naturalized by act of parliament is “ to all intents and purposes a natural born subject.” 1 Co. Litt. 129, a. It is also said, that naturalization is an adoption of one to be entitled to what by birth an Englishman may claim, and takes effect from the birth of the party, but denization from the date of the patent. Viner’s Abr. tit. Alien, letter D. Naturalization in Ireland, has no effect in England, because it is a fiction of law, and can affect only those consenting to the fiction. When the law-makers have power, it has the same effect as a man’s birth there. Id. pl. 7. 1 Bac. Abr. tit. Aliens, 130. The position, in 1 Black. Comm. 374, is, that naturalization cannot be performed, but by act of parliament; for by this, an alien is put in exactly the same state as if he had been
Y. It was further contended on the argument, that the acknowledgment of the mortgage by Mrs. Cummings, operated under the statute as a valid execution of the instrument, and a release of all her right to dower, notwithstanding her infancy. This idea is derived from, and attempted to be sustained by, the terms of the grants from Charles II. to the Duke of York, 1664 and 1674, by which the lands in this colony were to be held of the king, as of the manor of East Greenwich in the county of Kent, in free and common socage, and not in capile by knight service. By an ancient custom derived from the Saxon times, most of the lands in
VI. We have been referred to a number of authorities to show that the acknowledgment under the statute by femes covert, by means of which they are enabled to transfer their interest in lands, coming in the place of a transfer by fine and recovery, operates in bar of their right of dower, even in case of infancy. It is true, that the record and judgment of the court in these cases, is conclusive upon the cognizor and vouchee, whether an infant, idiot or feme covert until reversed on error; and in the case of an infant, the reversal must take place before he or she attain full age, because they must be inspected by the judges in open court. 5 Cruise, tit. 35, Fine, c. 5, § 26, 27, 28, tit. 36, Recovery, c. 8, § 6, Preston on Convey. 252. 12 Co. Litt. 122. But the acknowledgment under our statute, is not considered in the nature of a judgment, and has no such conclusive effect upon the rights of the persons making it. 4 Johns. R. 161. 12 id. 469.
Judgment affirmed.
At the same term, when the preceding case on writ of error was argued, another question between the same parties arose, viz. whether this court
By the Court, Bronson, J. The decision in the case of Priest and others v-Cummings, for dower, renders it unnecessary to discuss this case. It is enough that the amendment ordered by the marine court, was not material, and did' not in any way affect the rights of the relator. It would therefore be useless to consider whether a mandamus would lie in any case to vacate an amendment within the power of the inferior court; or whether the supervisory power of this court extends to the marine court in cases of naturalization, under the acts of congress.
The relator has not been prejudiced by the amendment, and can therefore have no better right to prosecute a mandamus that any other citizen.
Judgment for the defendants on the demurrer to the return to the alternative writ.