Elmondorff v. Carmichael
| Decision Date | 20 June 1823 |
| Parties | Elmondorff, & c. v. Carmichael. |
| Court | Kentucky Court of Appeals |
(Decided on the 11th day of October, 1822; but suspended on a petition for rehearing.)
AN APPEAL FROM A JUDGMENT OF THE GENERAL COURT.
HAGGIN and CRITTENDEN for the appellants;
WICKLIFFE and BIBB for the appellees.
1. By the common law of England, as adopted by Virginia at the revolution, an alien could take lands by purchase, and hold them until divested by inquest of office; but he could not take them by descent. 1.
2. In case of taking by purchase, an inquest of office was absolutely necessary, to divest him of the lands. 1.
3. Whether a patentee was, on common law principles, a purchaser, so as to take lands by virtue of the patent, is doubtful. 2.
4. Under the act of 1779 of Virginia, a patent might lawfully issue to an alien during the 18 months allowed him to become a citizen; and if he became a citizen within the time allowed, although after the emanation of the patent, he became thereby invested with the legal title. 3 and 4.
5. After the Articles of Confederation were ratified, the alien effectually complied with the requisition of becoming a citizen of Virginia, by becoming a citizen of any one of the United States. 4.
6. Proof of the loss of a paper which can not be given in evidence without proof of its execution, will not justify the introduction of a copy of it, without proof of the execution of the original. 5.
7. A copy of a will executed in a foreign country, sworn to be a true copy, by one of the attesting witnesses to the original and that the testator was of sound, disposing mind, and that the will was acknowledged by him in the presence of the other subscribing witnesses is admissible as evidence. 6.
8. The facts recited in a private act of assembly, may be evidence between the commonwealth and the applicant; but are not evidence in contests between the applicant and other individuals. 7.
9. The title acquired by the commonwealth on the escheat of the right of the eldest patentee, does not inure to the junior patentee for the same land; but the commonwealth may regrant the escheated title, so as to vest in her then grantee all the advantages and privileges which the original patentee would have had, if he had lived. 8.
10. Governments are not subject to imputations of fraud, or to estoppels, nor do their grants of land imply warranties. 8.
Statement of the case.
This was an ejectment, decided in favor of the tenants or defendants in the court below. The parties claim under adverse patents, issued by the commonwealth of Virginia. That set up by the lessors of the plaintiff, is the eldest in date, and was issued to Robertus Samuel Brandtz, on the 11th of October, 1784. But it is shown that at that time the patentee was an alien, and a native of the Netherlands, and that on the 8th of November, 1784, not quite one month after the patent issued, he took the oath of naturalization in the state of Maryland, before a competent tribunal, pursuant to an act of the legislature of that state, admitting foreigners to become citizens. It is therefore contended, that this grant to an alien is void, and passes no estate, or not such an interest as will support an ejectment; and this is the first question presented for our decision.
1. From the authorities cited, and the investigation the court has made on this subject, the following general rules are discovered to have existed in the laws of England, at our separation from that country: 1st, 2dly, " That an alien cannot take a title by descent, as he can by purchase; and in case the heir is an alien, the title is immediately vested in the crown, and no inquest is necessary for that purpose, although an office of instruction may be found."
By the common law of England, as adopted by Virginia at the revolution, an alien could take lands by purchase and hold them until divested by inquest of office; but he could not take them by descent.
In case of taking by purchase, an inquest of office was absolutely necessary to divest him of the lands.
There can be doubt, that the commonwealth of Virginia, when it assumed its republican character, succeeded to the rights and privileges of the crown of England as to her own domain. And it is equally clear, that she adopted the laws in force there at a certain period, so far as they were compatible with the genius and spirit of the new government, and were not locally inapplicable. Without inquiring into the policy of the foregoing principles, or investigating the reasons which gave them birth, we have no doubt they were also adopted by Virginia, at the revolution, and composed part of her code and ought to be adjudged to exist, until altered by the legislature. This has been held to be true in New York, with regard to that state, and is so decided, with regard to Virginia, by the supreme court of the United States, in the case of Fairfax's devise v. Hunter's lessee, 7 Cranch 603. It is also decided in that case, that a devisee is a purchaser within the meaning of the rule, and can and does take the estate devised to him.
2. But that a grantee from the crown, or government, would or could take an estate by patent, and hold it, for the use of the government, is a point not so clear. There is a considerable difference between him and the purchaser from an individual. The reasons which operate in the latter case, are not as potent in favor of the former. Besides, many dicta in the English authorities are against it. See Bro Abr. title Patent, 44; 7 Viner's Abr. title Prerogative, p. 78; 2 Black. Com. 347, 348, and Tucker's note; Jacob's Law Dictionary, under Grants from the Crown. There is, however opposed to these authorities, the case of Craig & al. v Radford, 3 Wheat. 594, in the supreme court of the United States, precisely in point with the present. But this case is decided on the authority of the case of a devisee, in Fairfax's devisee v. Hunter's lessee, 7 Cranch 603 supposing the case of the devisee and that of a grantee from the state, to be precisely parallel. Besides, the question does not appear in that court to have undergone the same minute investigation of authority, the mature deliberation, and the application of reason, which usually characterize the decisions of that tribunal.
Whether a patentee was, on common law principles, a purchaser so as to take lands by virtue of the patent, is doubtful.
3. Without, however, weighing these authorities and determining which ought to preponderate?? we shall, assuming the law for the present to be that an alien cannot take by a grant from the government, look into the statutes of Virginia, which originated these claims now in contest, and see how far she has recognized these principles, or aided the case of alien. It is at once evident, that the legislature did recognize the repugnance of the common law to an alien holding the soil; for in the act of 1779, 1 Litt. 415, it is provided, that " all persons, as well foreigners as others, shall have right to assign or transfer warrants and certificates of survey for lands; and any foreigner purchasing lands, may locate and have the same surveyed, and after returning a certificate of survey to the land office, shall be allowed the term of eighteen months, either to become a citizen, or to transfer his right in such certificate of survey to some citizen of this or any other of the United States of America." This provision acknowledges the common law principle, that an alien could not hold, by enabling him sub modo to purchase. But while it does this, it provides for a class of cases which includes the right of Robertus Samuel Brandtz. It has made an inroad upon the common law. It supposes that aliens may purchase, and enables them to do so, and again to sell. It permits them to locate, survey and return the plats, and then gives them eighteen months either to sell or become citizens. From this it is evident, if they did sell, the citizen-purchaser acquired a good title. It as clearly follows, that if they became citizens in the same time, they might keep it themselves. If this is not necessarily implied in these provisions, they mean nothing and are wholly inoperative. Why give the foreigner time to sell, if he could not sell, and his purchaser could receive nothing? And why give him time to become a citizen, when he could gain no title by it? Why tantalize him with the prospect of obtaining land by acquiring citizenship, and then slip the land from him because he was an alien? Hence, we conclude, that an alien could acquire title, by becoming a citizen. The question then remains, did Robertus S. Brandtz so comply with these provisions as to entitle him to hold these lands?
Under the act of 1779, of Virginia, a patent might lawfully issue to an alien during the eighteen months allowed him to become a citizen; and if he became a citizen within the time allowed, although after the emanation of the patent, he became thereby invested with the legal title.
By recurring to his grant, it appears that he claims as the assignee of another individual. At what stage of the title he acquired his interest, does not certainly appear in this cause; but if we suppose it as early as the warrant itself he was authorised to locate and survey. One of these surveys (as there are two in question) was made on the 19th, and the other on the 23d of January, 1783. Fifteen months were allowed him to return the survey to the land-office. But supposing him to have...
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