Waugh v. Riley

Wilde, J. This was an action to foreclose a mortgage of real estate, made by Barnard Riley to Nathaniel Marsh, and by the said Marsh assigned to the plaintiff. At the trial in the court of common pleas, several exceptions were taken to the decisions of the court, upon which the tenant moves for a new trial. The first exception is founded on an objection made to the jurisdiction of the court of common pleas. The tenant gave in evidence a quitclaim deed of the mortgaged premises, from said Barnard Riley to the demandant, made subsequently to the said mortgage, by which it was contended the mortgage was merged, and the whole estate vested in the demandant. This undoubtedly would have been a valid objection to the jurisdiction of the court, if there had been any proof of the delivery of the deed to the demandant, or of any claim made by him under it. But this was denied by the demandant, and no evidence of a delivery of this deed to him, or of his accepting it, or making any claim under it, or having any knowledge of it, was offered; and the tenant’s motion to dismiss the action, for want of jurisdiction, was rightfully overruled. Several objections were then made to the demandant’s title, only one of which is now relied on. It was objected that Riley, the mortgagor, was an alien, and that, by the deed of conveyance to him, the estate immediately vested in the Commonwealth ; he being incapable of taking and holding real estate. But the doctrine is very clearly established, by numerous authorities, that an alien may take a freehold, and hold it [295] until office found. It is true, that by the strictness of the common law, it has been held that an alien cannot maintain an action for the recovery of possession of real estate. But in all the cases in which this doctrine is maintained, it is held that he may take and hold real estate until office found, and that he may hold it against all the world except the government. So that an alien may defend, but he cannot prosecute, in a real action. It is justly remarked by Savage, C. J. in Bradstreet v. Supervisors of Oneida County, 13 Wend. 548, that “it seems strange that any person who, by our laws, may take real estate, and hold it against all the world except the government, should not be at liberty to prosecute for the recovery of possession.” However this may be, it is unquestionable that an alien may take and hold real estate against every person, until office found, and may convey his right and title to a purchaser. The question whether an alien can prosecute for the recovery of possession of real estate does not arise in this case. But it was decided, in the case in 13 Wend, above cited, that notwithstanding the ancient rigor of the common law, as laid down in sundry cases, such an action might be maintained; and the reasons given by Chief Justice Savage, in support of the decision, are very cogent. An objection was made to the admission of evidence, on the part of the demandant, to rebut the evidence of payment of the mortgage debt by Riley’s labor and services for the demandant, after the assignment of the mortgage to him. The demandant was allowed to introduce evidence to show that Riley was poor, and dependent upon his earnings for the support of himself and family ; and that it was the practice of the demandant to pay all the laborers in his employment at short and stated periods. We are not aware of any valid objections to the competency of this evidence. We think it was for the jury to decide what inference, if any, might be drawn from these circumstances. Exceptions overruled