Burrow v. Burrow

• Decision Date: 21 May 1896
• Citation: 67 N.W. 287,98 Iowa 400
• Parties: BURROW v. BURROW ET AL.
• Court: Iowa Supreme Court

98 Iowa 400

67 N.W. 287

BURROW

v.BURROW ET AL.

Supreme Court of Iowa.

May 21, 1896.

Appeal from district court, Sac county; Z. A. Church, Judge.

Suit in equity to quiet the title to certain land in Sac county in plaintiff. A demurrer to the defendants' answer was sustained, and the defendants appeal. Affirmed.Chas. D. Goldsmith, for appellants.

James H. Tait and W. A. Helsell, for appellee.

DEEMER, J.

The plaintiff claims title to the land in controversy by descent from and through his brother, one Henry Burrow. It appears that plaintiff's parents, Daniel and Jane Burrow, were at all times prior to their death, which occurred long prior to the year 1890, residents and subjects of the kingdom of Great Britain; that the defendants are also children or heirs at law of the said Burrows, deceased; and that they are now, and at all times have been, nonresident aliens. Henry Burrow, a brother of the plaintiff, died, unmarried and intestate, on the 6th day of June, 1894, seised of the land in dispute. At the time of his death he was a naturalized citizen of this country. The defendants claim title to the land by descent from and through their parents and Henry Burrow; and they allege that immediately upon his death they took possession of the premises in controversy by their agent and relative, James Brock, he being related to all the defendants within the third degree of kindred, and that he has ever since been in the occupation thereof, and has declared his intentionof becoming a naturalized citizen of the United States. The effect of the ruling upon the demurrer was to deny to defendants any interest in or title to the lands.

Under the Code of 1873, §§ 1908, 1909, aliens, whether they resided in this or any foreign country, might acquire, hold, and enjoy property, and convey, devise, mortgage, or otherwise incumber the same, in like manner and with the same effect as citizens of the state. The Twenty-Second general assembly, however, changed this law, and provided that “non-resident aliens * * * are prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase or otherwise only as hereinafter provided. * * * Any non-resident alien may acquire and hold real estate to the extent of 320 acres, * * * providing that within five years from the date of purchase of said property the same is placed in the actual possession of a relative of such purchaser, the occupant being related to such owner within the third degree of kindred. * * * And further provided that such occupant become a naturalized citizen ten years from the purchase of said property as aforesaid.” Acts 22d Gen. Assem. c. 85, §§ 1, 2. This was the law in force at the time of the death of Henry Burrow, and we are to determine whether the defendants have title to the land by virtue of the provisions above quoted. It will be seen that the general rule is that non-resident aliens are prohibited from acquiring title to or holding lands by any means whatever. There is an exception which provides, in substance, that they may acquire and hold real estate, provided that, within five years from the time they purchase it, they take actual possession thereof through a relative within the prescribed degree of kinship. Appellants contend that they are within this exception; that it is immaterial how they acquired the land, provided they placed the same in the possession of a relative within the prescribed degree of kinship, within five years from the time of its acquisition, and otherwise complied with the statute.

This question has never been directly decided by this court. In the case of Furenes v. Mickleson, 53 N. W. 416, we held that a resident whose father was a nonresident alien could not inherit through his father's brother, who was a resident of the state, since he would derive his title mediately, through his father, and not immediately, through his uncle. And that by reason of the provisions of the act of the Twenty-Second general assembly, before quoted, the resident derived no title to the land in dispute. And in the case of Bennett v. Hibbert, 55 N. W. 93, we held that a devise of real estate was a “purchase,” as that term is used in the exception to the general rule stated in the acts of the legislature before quoted. While the question presented by this appeal was not necessarily involved in the case last cited, yet much that...