King v. Ware
| Decision Date | 17 March 1880 |
| Citation | 53 Iowa 97,4 N.W. 858 |
| Parties | KING v. WARE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Franklin circuit court.
The plaintiff claims to be the owner of an undivided interest in 1,280 acres of land in Franklin county, and by his petition demands partition thereof.
The defendant averred in substance that Asahel Gage entered and located the land about the twentieth day of May, 1856, and that he died on or about July, 1861, seized of said premises, and without having made any disposition thereof by will; that at the date of his death and at all times prior thereto said Asahel Gage was a non-resident alien, being a subject of Great Britain, residing in Canada West; that at the time of his death eight of his children were foreign aliens, residing in Canada, and subjects of Great Britain; that his two sons, James D. Gage and John M. Gage, were residents and citizens of this state, and upon the death of their father inherited the whole of said premises; that subsequently John M. Gage died, leaving his share of said real estate to his widow, Elmira M. Gage; that about June 1, 1872, the defendant purchased said land of James D. Gage and Elmira M. Gage, and is therefore the ower in fee of the same.
It appears from the averments of the petition that the plaintiff claims title to an undivided interest in the land by virtue of a purchase from one of said children, who, it is averred in the answer, was a non-resident alien at the date of the death of Asahel Gage. There was a demurrer to that count of the answer which set forth the above facts, upon the ground that it appeared therefrom that the defendant was not the owner of the whole of said land, but of an undivided interest therein. The demurrer was sustained. Defendant appeals.
Shiras, Van Duzee & Henderson and McKcnzie & Hemingway, for appellant.
King & Henly and Porter & Moir, for appellee.
1. The decisive question in this case is, was Asahel Gage seized of an estate in fee of the lands in controversy at the time of his death; or, in other words, did his purchase of the land from the United States invest him with the title thereto, notwithstanding the fact that at the time of his purchase, and ever afterwards, he was a non-resident alien? It is contended by appellant that, notwithstanding the fact that a non-resident alien, under the law then in force, could not, under the ordinary rule, acquire and hold real estate in this state, yet the purchase of Gage invested him with an estate of inheritance, because his title was derived directly from the United States by a patent which conveyed the premises to him, his heirs and assigns, and that the grant thus made from the United States to a non-resident alien could not have been defeated, nor the land escheated by the state.
The contention of the plaintiff is that Asahel Gage had no transmissible blood by reason of being a non-resident alien; that his property did not descend at his death, but was liable to escheat; that he could not become seized of an estate of inheritance by reason of his alienage, and that upon the taking effect of chapter 193, Acts of Twelfth General Assembly, all disabilities appertaining to alienage were removed, and these lands never having been escheated by the state, the children of Gage inherited from him share and share alike, regardless of residence...
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