Guyer v. Smith

Eaetol, J., delivered the opinion of this Court. This was an action of Ejectment brought by the appellants against the appellees on the 1st day of October 1858, — 246 — for Lot No. 876, containing fifty acres of land. Plea non cul. No questions of location arise in the case. The plaintiff offered in evidence the award of the lot in question, under the Act of 1788, (November session,) to Thomas Adams, and a deed for the same from Adams to John Guyer, of the city of Annapolis, dated the thirtieth day of March 1792. They then offered, by consent, evidence taken in the Island of St. Bartholomew. From this evidence it appears that John Guyer died in the Island of St. Bartholomew on the 13th of March 1841, leaving a will’, by which he devised all the residue of his property, real and personal, and wherever situated, to his two sons, Benjamin Y. Guyer and James Guyer, (the lessors of the plaintiff,) who, as described in the will, “are also the children of Miss Margaret Richardson.” The execution of the will was proved by the only witness examined, who also proved that John Guyer had resided in the Island of St. Bartholomew for more than forty years, engaged in mercantile pursuits, that the lessors of the plaintiff are natives and citizens of the Island, and owe allegiance to his Majesty, the King of Sweden and Norway; and that to the best of his belief their father and mother were not lawfully married, and that their mother is partly of African blood or descent. The defendants then offered in evidence an escheat patent for this lot (No. 876,) under the name of “ Yam-land,” issued to George Smith, of Alexander, dated the 28th of March 1862, and reciting that the warrant therefor was obtained on the 30th of October 1860. The patent is in the usual form of escheat patents granted by the Land Office. The questions presented by this appeal arise upon the plaintiffs’ prayer, which was . refused, and the 5th, 6th and 7th prayers of the defendants, which were granted. The facts disclosed by the evidence, and upon which the prayers are based, show that John Guyer, the testator, was a citizen of the United States domiciled — 247 — abroad, and that bis devisees, the lessors of the plaintiff, are his illegitimate children, and aliens, born and residing in the Island of St. Bartholomew. As they take by devise, they are considered in the law as purchasers; this is decided by the Supreme Court of the United States in Fairfax’s Devisee vs. Hunter’s Lessee, 6 Cranch, 603. Judge Story delivering the opinion of the Court, page 619, says: “It is clear at the common law, that an alien can take lands by purchase, though not by descent, or in other words, he cannot take by the act of law; but he may by the act of the party,” and after citing the authorities for this position, he continues: “Nor is there any distinction whether the purchase be by grant or devise. In either case the estate vests in the alien,— Dow. on Dev., 316, &c. Park Rep., 144. Co. Litt., 26, not for his own benefit but for the benefit of the State, or in the language of the ancient law, the alien has the capacity to take, but not to hold lands, and they may be seized into the hands of the sovereign.” See also the opinion of Mr. Justice JoNSON in the same case, pages 628-630. The question whether an alien holding lands by purchase can maintain an action for their recovery, is also considered in the case cited. On page 620, Judge Story says, “It seems indeed to have been held that an alien cannot maintain a real action for the recovery of lands. Co .Lilt., 129; Thel. Dig, oh. 6; Dyer, 26; but it does not then follow that he may not defend, in a real action, his title to the lands against all persons but the sovereign.” And we may add that this doctrine of the common law seems to be supported by the authorities cited under the 3rd point in the appellee’s brief. It is however contended by the appellants that the contrary has been decided in this State,,by the cases of McCreery’s Lessee vs. Alexander and Same vs. Wilson, 4 H. & McH., 409 and 412. Those decisions were so construed by the Supreme Court of New York, in Bradstreet vs. Super — 248 — visors, &c., 13 Wend., 546, and were treated as having been decided entirely upon common law principles. This does not appear to us entirely clear. The opinion of Chief Justice Chase in the first case is very brief, and in the second no opinion is given. From an examination of the argument of Mr. Martin, it appears 'that one of the questions involved, was the effect of the British Treaty; and a reference to the treaty of 1794, Art. 9, will show its applicability to the cases then before the Court. But without dwelling upon this point, or deciding upon the right of an alien to maintain an action of ejectment for freehold lands in this State, it is very well established that his title is held not for his own benefit but for the benefit of the State, and subject to be divested by the State upon an inquest of office found, or other notorious act equivalent thereto. This is settled by the case of Fairfax’s Devisee vs. Hunter’s Lessee, above cited. And it only remains to inquire whether the grant of an escheat patent has that effect. In the valuable compilation by Mr. Kelty, The Landholders’ Assistant, it is stated that the practice of escheating lands in Maryland without office found, prevailed before the end of the proprietary government; that this practice afterwards continued. And that the practice of proceeding upon inquisition of office found having fallen into disuse,, was not afterwards resumed. See pages 175, 176, 177; see also 362, 366, 367, 371. Under the present organization of tiie Land Office, the grant of an escheat patent is the judicial act of the Commissioner, before whom all parties in interest have a right to appear, and by their caveat, to contest its issue, with the right of appeal from the decision; and we are of opinion that the issue of an escheat patent has the same effect as the ancient proceeding by office found, in divesting the title of an alien to freehold lands in this State. In the opinion of this Court, the claim of the appellants is not protected by the 4th section of the Act of Congress — 249 — passed April 14th 1802. That Act declares, “that the children of persons who 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 of the United States.” These appellants claim the benefit of that section, as the children of John Gtuyer, who was a citizen of the United States. But the proof shows that they were not born in lawful wedlock, they are therefore illegitimate; under our law nullius filii, and clearly therefore not within the provisions of the Act of 1802. It-follows from the views above expressed, that there was no error in rejecting the first prayer of the appellants, and that the 5th, 6th and Ith prayers of the appellee were properly granted. (Decided November 16th 1864.) Judgment affirmed.