Buffington v. Grosvenor

• Decision Date: 09 July 1891
• Citation: 46 Kan. 730,27 P. 137
• Parties: BUFFINGTON v. GROSVENOR. SAME v. SEARS.
• Court: Kansas Supreme Court

27 P. 137

46 Kan. 730

BUFFINGTON v. GROSVENOR. SAME v. SEARS.

Supreme Court of Kansas

July 9, 1891

Syllabus

1. The word “citizens,” as used in section 17 of the bill of rights prior to the amendment of 1888, meant citizens of Kansas; and the word “aliens,” as there used meant persons born out of the United States, and not naturalized.

2. The statute which provides that the widow shall not be entitled to an interest in lands conveyed by the husband when the wife, at the time of the conveyance, was a non-resident of the state, is not repugnant to section 2 of article 4, or the fourteenth amendment to the constitution of the United States.

Error from district court, Kingman county; S. W. LESLIE, Judge.

Hallowell, Hume & Gordon, for plaintiff in error.

John E. Lydecker and Douhitt, Jones & Mason, for defendant in error.

OPINION

JOHNSTON, J.

Martha A. Buffington brought two actions in the district court of Kingman county, one against William S. Grosvenor and the other against John G. Sears, to recover from each one-half of certain real property situate in Kingman county. She was unsuccessful in each case, and is here complaining of the judgments that were given. The material facts of the cases are alike, and, as they present but one question, they may be disposed of in a single opinion. Martha A. Buffington became the wife of Pierce Buffington in 1865, and continued in that relation until the time of his death, in 1884. He removed to Kansas five or six years before his death, and shortly after coming here he acquired the absolute legal title to the property in controversy. Afterwards he conveyed the property by warranty deeds to certain grantees, and the defendants, by subsequent conveyances, have acquired all the title obtained by such grantees. Martha A. Buffington did not join her husband in conveying the property, and has never executed a conveyance of the same to any one, but she was never a resident or citizen of Kansas, and was never in the state prior to the death of her husband. She now claims to be entitled to one-half interest in the real estate of her husband, of which she had made no conveyance; but the trial court held, under the proviso of section 8 of the act concerning descents and distributions, that, as she had not been a resident of Kansas, she never had any interest in the land conveyed, and her signature or conveyance was unnecessary to a complete transfer of the land by her husband. The section referred to reads as follows: "One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee-simple, upon the death of the husband, if she survives him: provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid." Gen. St. 1889, par. 2599. The plaintiff’s contention is that the proviso of the section violates both the state and federal constitutions, in that it discriminates against the citizens of the other states, and aliens. It is first contended that the proviso falls within the inhibition of section 17 of the bill of rights, which at the date of the conveyance of the land in controversy by Pierce Buffington read as follows: "No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment, or descent of property." Does the proviso mentioned make "a distinction between citizens and aliens in reference to the purchase, enjoyment, or descent of property?" We are inclined to think that it is a regulation of the manner of transferring property within the state, instead of a restriction upon its descent. However, that question is immaterial in this case, so far as section 17 of the bill of rights is concerned. In no event can it be said that there is a distinction between citizens and aliens in the present case, for it does not appear that the plaintiff is an alien within the proper meaning of that term. It is alleged by plaintiff, and conceded on the other side, that she is a citizen of the United States. The wife of a citizen of Kansas, who resides in another state, cannot be regarded as an "alien." Wesbter defines the word as "one born out of the jurisdiction of the United States, and not naturalized," and Bouvier gives a like definition. Anderson’s Dictionary of Law defines an "alien" to be "one born in a strange country, under obedience to a strange prince, or out of the ligeance of the king." The amendment to this constitutional provision, which was adopted in 1888, shows that that is the sense in which it is used in our constitution. Section 17 of the bill of rights, as amended, reads as follows: "No distinction shall ever be made between citizens of the state of Kansas, and the citizens of other states and territories of the United States, in reference to the purchase, enjoyment, or descent of property. The rights of aliens in reference to the purchase, enjoyment, or descent of property may be regulated by law." Before this amendment was adopted, citizens and aliens stood upon an equality with reference to the purchase, enjoyment, and descent of real property, but by the amendment the people ordained that the restriction upon the legislature should be removed, and authorized such discriminating regulations against aliens in this respect as might be deemed wise. The use of the term "alien" in the amendment leaves no doubt of the sense in which the word is used, and furnishes an argument that it was used in the same sense in the original provision. We agree with counsel for plaintiff that the term "citizen," as used in the original provision, refers to citizens of the state of Kansas. Counsel, who filed a brief by the permission of the court as amicus curiæ , contend that the term includes all citizens of the United States, but we are not inclined to agree with that view. We conclude, then, that section 17 of the bill of rights had no application to this case.

It is next contended that the proviso is repugnant to that provision of the federal constitution which ordains that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states," and also violative of a like limitation in the fourteenth amendment. We think the proviso is not in conflict with either of these provisions. It makes no discrimination against the citizens of other states in respect to any of the privileges or immunities of general citizenship. The proviso in connection with other statutes, furnishes a rule regulating the manner of the transfer and transmission of real property. Where a person owns the absolute title to land in Kansas, and his wife is a resident of the state, she must join in the conveyance; but when she is not a resident of Kansas, and therefore not subject to its laws, her signature and conveyance are unnecessary, and the husband...