Opinion
(January Term, 1802.)
British subjects, residents out of this country, became aliens by the Declaration of Independence.
EJECTMENT. Francis Stringer devised thus: "After the death of my mother, I give the lands in question] to Ralph Stringer in fee, provided he or his representatives claim within ten years after my mother's death." He came from Europe in the lifetime of the mother and returned and died before the war, leaving Thomas Stringer his heir at law. He died in 1795, leaving Francis Stringer, the lessor of the plaintiff, his heir at law; Francis was then in this country.
Slade objected to the plaintiff's recovery; first, because here was a condition precedent, and it is not proved that Ralph claimed within ten years after the death of the mother; therefore, the estate never vested in him. Secondly, Thomas became an alien, and was so at the Declaration of Independence, and could not transmit his lands by descent to the lessor.
Gaston, e contra: Those who were not born aliens could not become so by a separation of empire; and, therefore, Thomas held his lands notwithstanding the separation, and could transmit them by descent. (159) Secondly, the claiming within ten years was not a condition precedent, but a conditional limitation, or a condition subsequent, which if not performed, the heir might enter. Here he did not enter after the ten years, though he had sold to Phillips. The estate vested immediately on the death of the testator, for the condition was performable by his representative or heirs, which proves the estate vested; otherwise, it could not descend to the heirs.
Article XXVI of our Constitution declares all the lands within the bounds of this State to belong to the collective body of the people, making exceptions in favor of those who had already obtained grants from the king or lords proprietors, which exceptions extend only to those who were parties to that instrument — the freemen of North Carolina. All others are out of the exceptions; consequently, all British subjects, and no one who was then a British subject had title to any lands within this State after that period. It will be said, Why, then, confiscate the lands of British subjects? I answer, the confiscation acts considered that some who were then British subjects might be willing to become citizens, and to join their efforts in the common defense. The Assembly meant to retain, and actually reserved, the power of restoring to such the rights which to them once belonged, if within the limited time they would apply for that purpose; and with respect to such as did not apply within time it was proper, and indeed necessary, to appropriate their estates to the common defense; the mode of doing which was pointed out by those acts, without which the property would have remained unused.
Cited: Benzein v. Lenoir, 16 N.C. 265.