Brown v. Shilling

Tuck, J., delivered the opinion of this court. It was settled in the case of Hall vs. Gittings, 2 H. & J., 125, that an escheat patent was only prima facie evidence of title, and might be rebutted, by showing that the former owner did not die intestate and without heirs, as suggested by the party applying for such a patent. This case has been recognised by this court in Hammond vs. Inloes, 4 Md. Rep., 171. The first exception, therefore, was not well taken, unless the case of Cook vs. Carroll, 6 Md. Rep., 104, has overruled these decisions. The cases are materially different in the means necessary in order to obtain an escheat patent, and one like that in Cook vs. Carroll, where the patentee claims as assignee of another, who appears by the records of the land office to be entitled to the land. By the early practice of the office, as we are informed by the Landholder's Assistant, 174, &c., the escheatable quality of land was determined by a jury summoned for the purpose, at the instance of the applicant; and if the provincial court, upon view of the inquisition, adjudged the land to be escheat, a warrant of resurvey was issued accordingly; which judgment of the court upon the inquisition returned, or office found, affirmed the validity of the -particular cause of escheat under which the jury had determined the case to fall. But this process of inquisition and condemnation, interrupted by the change in the affairs of the land office occasioned by the suspension of the proprietary government in 1689, was never fully resumed, and long before [81] our revolution was wholly abandoned; so that all that a person had to do who supposed land to be escheat, was to make application and take up the land, if he thought proper to incur the expense and risk of not being able to maintain his title. The warrant for this purpose issues, “ upon the mere suggestion of .the applicant, with such specifications as to the cause of escheat, and the name, situation and quantity of the land, as the party is enabled or chooses to direct, in which it is obviously his concern to be as correct and as particular as he can, especially in regard to the description of the land.” (Ibid., 470.) Prom this notice of the present practice in such cases, it appears that the judge "of the land office makes no order in the premises which determines any question of right, but that the applicant takes the patent on his own suggestion of the facts necessary to the title, and at his peril. . In cases like Cook vs. Carroll, however, the process is very different, and a patent can be obtained only upon the most special and specific allegations and proofs, of the right of the party claiming as assignee of the title. These proceedings are stated at pages 493, 494, and, “on the authenticity and validity of these proofs, and their effect in relation to the parties entitled, as well as the several interests of those parties, the judge is to determine and to pass the title of the State accordingly.” It appears that such proceedings were hadas preliminary to the patent set out in the case of Cook vs. Carroll, “whereupon it was ordered by the chancellor that a patent should issue accordingly.” 6 Md. Rep., 105. If Ann Caldwell, the former owner of the land in dispute, left heirs capable of inheriting, the effect of the evidence offered by the defendant, in the first exception, was merely to show a subsisting outstanding title in another person than the plaintiffs, for which it was admissible, 2 H. & J., 125, 126, and not to inquire collaterally into a question of title that had already passed subjudice, as was the case in Cook vs. Carroll. The second exception was taken to the admissibility of the naturalization papers of Ann Caldwell, offered by the defendant. There was evidence that she was a native of Ireland; a widow in 1810, or 1811, and that she died in 1812, leaving [82] minor children, one of whom was alive at the time of the trial, or shortly before, but that the witnesses had never seen her husband, or known him to be in this country. We do not think the court erred in admitting this evidence. The act of Congress of 1802, ch. 28, has not, as far as we are informed, been construed to .exclude females from the rights of citizenship by naturalization; on the contrary, the practice has been to grant the right in this State. If it should be confined to unmarried females, there is nothing to show that Ann Caldwell was married at the time of her application. There is evidence that she was a widow before 1811, when the papers were obtained, and if widows are entitled, we must assume that the court which invested her with citizenship inquired into her capacity for that purpose, and having issued the proper certificate, we cannot go behind it, but must acknowledge the rights of those claiming under her as a citizen. The third and fourth exceptions were taken to the court’s refusal to grant two prayers offered by the plaintiffs, upon the insufficiency of the evidence to show that Ann Caldwell left children entitled to take by inheritance. We think that these prayers proceed upon a mistaken view of the fourth section of the act of Congress, above mentioned. It makes no difference in this case whether the husband of Ann Caldwell was ever in this countiy or not. That section enacts, that “the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens,” “provided the right of citizenship shall not descend to persons whose fathers have never resided within the United States.” It is plain that this act is not prospective, but applies only to persons who were citizens at the time of its passage; and the proviso denies citizenship to the children of persons bom abroad, unless their fathers, who may have been born abroad, had resided in this countiy. The previous portions of the section, however, expressly declare, that the children of naturalized persons shall be citizens, if under twenty-one years of age, and dwelling in the country at the time of the naturalization of the parents. It appears that the children of Ann [83] Caldwell fulfilled both these condition in 1811, when she was naturalized, and, consequently, were entitled to the rights of citizenship. 2 Kent, 51, 64. In disposing of this point we have relied upon the fact that Ann Caldwell was proved to have been a widow. Upon the question whether the naturalization of a married woman, whose husband has never been in this country, will impart this right to the children, we express no opinion. The court are unanimous in affirming the judgment on the first exception; but the last three are affirmed by a majority only of the judges who heard the cause. Judgment affirmed.