Opinion
(Spring Riding, 1798.)
1. Where an alien purchases lands in fee, those lands vest in him, and the State is entitled to have them divested out of him, if it think proper to exert its right, by causing an office to be taken finding his right; but until such office be found, the title continues in him.
2. The State is in possession without entry in all cases where an individual would be by entry.
3. Whether a conveyance by the trustees of the University is valid when a third person is in possession of the premises claiming adversely, quaere.
EJECTMENT for the one-half of a lot, No. 7, in the town of Washington, and upon not guilty pleaded, the evidence was that this lot belonged to three men by the names of Bonner, and had been in their family from 1747 till 29 July, 1790, when they sold it to Hatridge, who was born in Scotland and came to this country in 1787 or 1788, and died seized, after the purchase; and that the trustees of the University, on 6 May, 1795, sold the same to the lessor of the plaintiff as having escheated to and vested in them by the act of 1789, ch. 21, sec. 2. Upon the death of Hatridge, his clerk kept possession for his heirs, who resided in Europe, and that possession has been kept ever since for them, first by one and then by another.
Taylor, for the defendant, made the following objections to the plaintiff's recovery:
Harris, for the plaintiff: Hatridge continued in possession till he died. The State did not in all that time disturb his possession, and therefore the presumption is that he was a citizen; he might have become so by taking and subscribing the oath of allegiance according to the laws of the country.
1. Hatridge, the purchaser, was an alien, and purchased for the benefit of the State; and the title accrued to the State by the alienage of the purchaser, not by escheat; and therefore the University had not any title to convey to the lessor of the plaintiff.
2. Admit that the premises escheated upon the death of Hatridge without heirs inheritable, the title did not vest by escheat until an entry made for that purpose by some one authorized by the public. The lord's title by escheat is not complete till he has entered on the lands and tenements escheated. 2 Bl. Com., 245; 3 Bl Com., 173, 179.
3. If the title was vested in the State without entry, so that they could convey to the University, still the University has no more privileges as a corporation than individuals have as individuals, and so could (37) not convey to the lessor of the plaintiff before entry; a right of entry cannot be conveyed by them.
This is recognized by many decisions of the courts of this country, and is stated as law by all the books that treat of the subjects.
As to the second objection, the King in England, who is the representative of the public, may grant and obtain choses in action; the public here may do the same. The State in this respect succeeds to all the privileges of the crown. Such a principle was allowed for the public good, and is equally necessary here as in England, and now as it was before the change of government. 4 Ba. Ab., 214; 1 P. W., 252.
As to the third objection, the rule that choses in action cannot be transferred was of use when first adopted but by a gradual change of circumstances it has been long deemed, even in England, to be a very inconvenient and useless rule; and it may be well doubted whether it is proper to be received here in its full extent; it is certainly a mere nominal rule at this day, for the vendee may still use the name of the vendor and recover. He cited Swift's Com., 300; 4 Term, 340.
But if the rule has been received here and confirmed by judicial determinations, which I do not remember, it does not apply to the present case, for our act of Assembly, 1715, ch. 38, sec. 5, provides that all conveyances of land done and executed according to the directions of that act shall be valid and pass estates in land or right to other estate without livery of seizin, etc. So that since this act, where the party cannot make livery of seisin because he has not the seisin, his conveyance is as good as before the act it could have been, where he was in possession and did not make livery of seisin; and therefore since the act, the grantor need not make any entry, that being dispensed with by the act.
When an alien purchases lands in fee, those lands vest in him, and the State is entitled to have them divested out of him, if they think proper to exert their right, by causing an office to be taken finding his alienage; but until such office be found the title continues in him; and as he resides in the country and upon land purchased here, he is legally deemed to be a citizen as to this purpose till the contrary be found. Page's case, 5 Re., 52, third resolution, also Cro. El., 123, abridged in 1 Ba. Ab., 81. It is better the law should be so than that it should require the party to show his citizenship whenever the question incidentally arises before the court, when perhaps it is not foreseen nor expected; for if an office be found upon the very point, he cannot be taken unawares; he has notice of the question; he may traverse the very fact and satisfy it upon issue joined.(38) Hatridge, therefore, having died in possession, and no office finding his alienage having ever been taken, he is to be deemed a citizen; as he died without any heirs in this country, or elsewhere inheritable to his estate, it is an estate that accrues to the public for want of an owner, and may properly enough be called an estate escheated. Whether it vested or not in the public without entry may be decided either upon the law produced and relied upon by the defendant's counsel or by considering it independent of that law, as land without any owner to inherit it but such as are aliens. If the lord is entitled by entry, it is vested in the State without entry; for wherever a private person is entitled upon entering, the public is entitled without entering. 4 Re., 58. Or if it be considered as land left without any owners who can succeed as heirs but such as are aliens, then also the law casts it upon the public, because the freehold cannot be in abeyance; it must vest somewhere, and in the alien heirs it cannot vest, and therefore by operation of law must be vested in the public without any act to be done by them. 1 Ba. Ab., 81, who cites Co. Litt., 2; Leon., pt. 61.
The title, then, of the premises in question upon the facts proven in the cause was in the public, and by the act of 1779 was transferred to the University.
As to the question whether they could convey to the lessor of the plaintiff, the general rule is that a right of entry or of action cannot be conveyed. We do not know that the force of it is weakened where applied to the case of a corporation. The cases relied on by the plaintiff's counsel admit the existence of the rule, though they question the propriety of it at this day. It has been recognized by many determinations in the courts of this county, and these, too, of very modern date. However, as this is a question that very much concerns the University, and those who now are or hereafter may become claimants under them, it had better be reserved for a little more consideration. This may be effected by a verdict for the plaintiff, subject to the opinion of the Court upon this point, whether a conveyance by the University to the lessor of the plaintiff is valid under the circumstances of its having been made when there was a possession in a third person claiming adversely to the University.
The verdict was for the plaintiff accordingly, subject to the opinion of the Court upon that question.
NOTE. — On the first point see Barges v. Hogg, 2 N.C. 485. Upon the second and third points, see Clark v. Arnold, post,287.