Farrar v. Dean

• Decision Date: 31 October 1856
• Citation: 24 Mo. 16
• Parties: FARRAR et al., Appellants, v. DEAN, Respondent.
• Court: Missouri Supreme Court

24 Mo. 16

FARRAR et al., Appellants,

v.DEAN, Respondent.

Supreme Court of Missouri.

October Term, 1856.

1.The real estate of an alien escheats to the state at his death.

2.A sale of real estate belonging to an intestate's estate for the purpose merely of paying the costs of administration, no debts appearing ever to have been due from the intestate, is invalid, though approved by the Probate Court.

Appeal from St. Louis Land Court.

F. A. Dick, for appellants.

B. A. Hill and W. Preston, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This is an action in the nature of a suit in ejectment brought by plaintiffs, as trustees for Martha J. Sweringen, to recover possession of a lot in the city of St. Louis.The lot was sold by the public administrator of St. Louis county as property belonging to the estate of Christopher F. Schewe, deceased, and the plaintiffs derive their title under the purchaser of the estate at the sale.

It seems from the record that the lot was deeded to Schewe by Wm. Chambers, Wm. Christy and Thomas Wright, in 1817; that letters of administration were taken out on the estate of Schewe, in June, 1850, and the sale was made, and in December, 1851, was approved; that Salisbury became the purchaser at the administrator's sale, and that he afterwards deeded the lot in controversy to Farrar and Sweringen, the plaintiffs, as trustees for Mrs. Sweringen.It appears that Schewe was a foreigner, a German by birth, and was, in 1817, a very old man; that shortly after the winter of 1819he(Schewe) left St. Louis for Florida, as was said, and that he has never been heard of since.There was no personal estate--no other property of Schewe than the lot--and there were no debts due by the estate or to the estate.The administration created the debts by making costs.There were none before it commenced.The order of sale was made to pay the costs that had accrued in taking out administration, and investigating the title, and paying taxes on it after the administration commenced.No inquest was ever taken declaring the said Schewe an alien.The defendant claimed the land by conveyance from Wm. Christy, her father; and set up the defense of adverse possession for twenty years before the commencement of suit.There was a trial by jury and verdict for defendant.The plaintiffs bring the case here by appeal, and they complain of improper instructions given by the court to the jury.

We do not consider it a matter of much importance as to the instructions given--whether they were correct or not; as the judgment below must be affirmed on other grounds, which entirely destroy the plaintiffs' right to recover.The legal presumption of Schewe's death commences sometime in 1827 or 1828.At his death, he being a foreigner, his lot would instantly and of necessity (as the freehold cannot be kept in abeyance), without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent.(2 Kent'sCom. 54.)Chancellor Kent says: “Though an alien may purchase land or take it by devise, yet he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the state, upon an inquest of office found; and if he does, before any such proceeding be had, we have seen that the inheritance cannot descend, but escheats of course.”(2 Kent'sCom. 61.)Our act of 6th December, 1820, permitted resident aliens in any of the United States or territories, who shall have made a declaration of their intention of becoming citizens of the United States, by taking the necessary form of oath in due form of law, to inherit, and to transmit the inheritance of real estate within this state, and to acquire and hold the same by descent or purchase, and to alienate the same, and to have the same rights and incur the like duties in relation thereto as if they were citizens of the United States.The intention to become citizens and the preparatory oath are necessary to this privilege.Here is an old man--a foreigner; there is no evidence of any declaration on his part of an intention to become a citizen of the United States, nor of any oath to that effect taken.This presents a serious objection to the plaintiffs' recovery here.But this is not the most fatal one; nor do I rely alone on this.There is an obstacle in the way of the plaintiffs' recovery in this case, upon the title exhibited by them,...