Crane v. Reeder

21 Mich. 24, 1870 Mich. LEXIS 76

• Court: Michigan Supreme Court
• Decided: July 7, 1870
• Status: Published

Opinion

Campbell, Ch. J.

Crane, the plaintiff, sued defendants to recover certain lands in Wayne county, claimed by him to have escheated to the State, and to have been conveyed to him by the Trustees of Escheated Lands.

The land was deeded in 1801 by Todd & McGill to John Harvey, to whom it was afterwards confirmed by the United States under an act of Congress regulating grants of land in the Territory of Michigan, whereby all persons residing in the Territory and occupying lands which they or their grantors had continuously occupied and improved since and previous to July 1, 1796, were entitled to estates in fee simple. The patent issued in 1811. Harvey, whom the testimony tended to show to have been an Englishman, married here, but with no children born in this country, removed in 1816 to Indiana, where he died in 1835. At that time a person, •described as his daughter, was living with him, she being English, by birth,. and having reached this country some years before his death, but after her majority. She died in 1826 or 1827, leaving a husband, Edwin Reeder, but never having had any child. On the 27th of April, 1823, a deed was executed by John Harvey to this person, named Maria Yorke Harvey, purporting to be acknowledged, but not witnessed. It is claimed that Harvey was an alien, and that his daughter was an alien and could not inherit from him, in case the deed was void. It is also claimed that Maria Yorke Harvey died without heirs. Reeder went into actual possession some time after his wife’s death, and continued so until his death, in 3869. Defendants claim under him. He set up no title,' except by possession.

The questions presented upon the record are both new and important, and the very thorough and elaborate arguments on both sides have given us all the aid we can expect to get in the discussion from any source. We are, therefore, assured that in examining the questions involved, we have at least, heard all that is likely to be found.

The first question presented is, whether the deed from John Harvey to Maria Yorke Harvey was valid to convey title to her. It is claimed by defendants to have been a good common-law deed. It is not claimed that it would be good under the statute without the aid of the common law. The Ordinance of 1787 provided that, until otherwise declared, lands might be “ conveyed by lease and release, or bargain and sale, signed, sealed and delivered by the person being of full age in whom the estate may be, and attested by two tvitnesses, provided such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose.” The law of 1820, which governed the deed in question, was the same, so far as witnesses are concerned. We think that tbis statute was designed to coyer the whole subject until further legislation, and that it cannot be supposed any common law was to prevail over it, even if there had been any such law in force when the Ordinance became operative. A deed at common law was not sufficient without some enrollment, or some act in pais, to transfer title, and under the Ordinance, which recognized the fact that in this country there must be many non-resident owners, and much unoccupied land, a new rule was devised to take the place of all forms and ceremonies not mentioned there, and which would have been onerous and impracticable. It has been held, and we think correctly, that under such statutes, the witnesses are essential to the validity of the conveyance.—French v. French, 3 N. H., 234; Courcier v. Graham, 1 Ham., 330; Patterson v. Pease, 5 Ham., 190; Merwin v. Camp, 8 Conn., 35; Clark v. Graham, 6 Wh., 577.

It is true that the common law has been practically recognized here in most things, ever since the' American authorities assumed complete control, or at least, ever since the Territory of Michigan was organized. But in 1810 it was found necessary by express legislation to abolish the custom of Paris, and the English, French, Canadian, and Northwest Territory, and Indiana statutes, and other ordinances, for the reason that they did not exist in any attainable form, and the people were liable to be ensnared by their ignorance.—L. 1821, p. 459. But we are bound to know, as matter of legal history, that the law which governed this Territory in civil matters, prior to the taking effect of the Ordinance, and when Jay’s Treaty was negotiated, was the French.law, including the custom of Paris, as modified by royal edicts. Under that law, deeds always required the attestation of a notary and one or more witnesses.— Parfait Notaire, Bk. 1, Ch. 14. And for some time after the organization of Michigan, it was customary for the French settlers to convey by deed in the, same form which had been used under the old system, bv what purports to be a notarial contract, made before a notary and one or more additional witnesses. Some of these conveyances are preserved in the records of the commissioners who acted upon Harvey’s claim.—See Am. St. Papers, vol. 1, Pub. Lands, 420, 430, 446, 455, 456, etc. It would have been unsafe and productive of great injury, if the laws had not undertaken to settle the formalities of deeds in a region where there wore no adequate means for determining what the former written or unwritten law was.

John Harvey must be regarded as having died seized of the land in controversy. He had no heirs, who were American citizens, or who were born after-he acquired his title. And the question arises whether his alienage, or the alienage of any supposed - heirs, or the death of Maria Yorke Harvey (or Eeeder) without any heirs at all, operated, and if so, when and how, to create an escheat. And a further question then arises, whether the escheated estate has come lawfully into the plaintiff, Crane.

There is no serious question raised in regard to the capacity of Harvey to transmit to any lawful heirs, if he had any. The statute of 180?, under which he obtained his patent and confirmation, provided that the grantee should take an estate in fee simple. It would be contrary to the plain intent of this statute to allow the grantee himself to be ousted for alienage. The law was passed to carry out the equities of Article 2- of Jay’s Treaty of 1791. It having been ascertained that there were but six valid titles in the district, it became necessary to do something to protect those who had been honestly in possession, but had not been able to procure titles of any kind, complete or inchoate, before the country came into our hands. Congress, in a very liberal spirit, decided to recognize all wbo were in actual possession, occupancy, and improvement, and who, or whose grantees, had been continually so since prior to July 1, 1796, as entitled to receive a grant in fee simple. Many of these were presumably. aliens, but the treaty had removed the objection of alienage as to lands held by good title at that date, and in Forsyth v. Reynolds, 15 How., 364, it was held that the act of 1807 was intended to reach the actual settlers under Article 2, who could not be expected to have obtained valid titles whieh would be covered by Article 9. These séttlers were, by Article 2, allowed to remain and dispose of their effects without becoming citizens, if they should in writing elect to continue British subjects. Article 9 provides expressly that the alienage of those owning valid titles shall not interfere in any way with sale, devise, or inheritance. Article 2 contains no such provision as to settlers not having such titles, because they had no estates of inheritance, but leaves them at liberty to go or stay, and to sell such property as they have, or keep it. It was held as a rule of public law, applicable to such cases, in U. S. v. Repentigny, 5 Wall., 211, that the privileges thus secured by a treaty could not be claimed by any persons not accepting a new allegiance, except in strict accordance with the treaty provisions. And the act of Congress, proceeding on this theory, did not attempt to extend its privileges to any who were not, when they presented their claims, in actual settlement and occupancy, which had been continuous; while as to claims under Article 9, neither occupancy nor residence was essential.—Orr v. Hodgson, 4 Wheat., 453. And in this latter case it was held that although Article 9 declared positively 'that, as to lands owned at the date of the treaty in 1794, neither the owners nor their heirs or assigns should be regarded as aliens, yet this did not reach heirs or assigns who were not British subjects or American citizens, and did not protect descendants who were subjects of Venice. And, inasmuch, as the treaty did not provide, and the act of Congress covering the case before us does not in terms declare, that aliens of any kind may inherit from the settlers, whose possessory rights were confirmed and enlarged into freeholds, the question arises whether there is any other rule or provision from which such protection can be deduced. For if under this statute of 1807 any alien heirs could take, the result must be that all could take; and those who had no actual rights under the treaty, except to equitable consideration, would have privileges extended to their relatives which would be broader than those secured to perfect titles under the treaty, which extended only to British and American heirs, and not to heirs without reference to nationality.

It is clear that no such right could be deduced from the Territorial statutes adopted by the Governor and Judges in 1805, allowing aliens to take and hold lands. Those laws Avere repealed before the death of John Harvey, and before any rights could vest in any supposed heirs. But his title Avas not derived under those acts, even if they could bear the construction that an estate taken by an alien, while they Avere in force, operated at once and irrevocably to confer exemption from the disabilities of alien-age for all time to come upon his descendants and relatives. The title obtained under the act of Congress of 1807 was held in Forsyth v. Reynolds to be only a confirmation of the original purchase, which Avas prior to the passage of those statutes. And as hinted in U. S. v. Repentigny, if he had purchased from Government in the usual Avay, it is at least doubtful whether such statutes could confer upon aliens any such indefeasible right to purchase Government lands and transmit them to alien heirs without Congressional permission. But all that can be claimed under any such statutes is. that they protect rights which' become vested while they are in force. They cannot operate to prevent future legislation from barring the vesting' of any new interest. This question was settled under a treaty, — which is the most solemn form of a law; combined with' a compact,—in Chirac v. Chirac, 2 Wheat. R., 259. The treaty provided expressly that heirs should inherit without being naturalized; and a person who, as a French citizen, had purchased lands under it, died after the treaty had expired, seized in fee of those lands, leaving heirs who were French subjects. It was held that although his title remained good while he lived, yet they could not take under the treaty, and that their rights depended on the local law.

It is claimed, however, that under the Ordinance of 1787, the intention existed' to do away, in the rules of inheritance, with all questions of alienage, and that the-policy of the Government has always been to put aliens on as good a footing as citizens. But we have not been able to trace any such intention in the action of the United States. There has always been a policy aimed at inducing aliens to become citizens, but none which would render it indifferent to them whether they became citizens or not. On the contrary, there are no courts, in the country which have enforced the disabilities of aliens who do not seek citizenship more uniformly than the courts of the United States. And the laws and treaties speak the same language.

The only color for claiming such a construction for the words of the Ordinance, is because it does not say, when declaring the rules of descent, that the relatives must be American citizens, and because it applies the same rules tó the 'estates of “ resident and non-resident proprietors.” But there are probably very few statutes which undertake to mention specifically the citizenship of those who are' to be affected by them. It is implied in all statutes that they shall be read in accordance with the recognized rules of interpretation, and apply to such persons or things as fall naturally within their scope. It is not customary in passing acts to express such disabilities as should be implied. And alienage has been recognized in all common law, and in most, if not all other countries, as a disqualification to hold land in fee. Citizenship gave the same rights to residents and non-residents, and the law did not require aliens to be included in order to satisfy its terms. Moreover, at the time this Ordinance was passed, it is a matter of history that the State authorities were very tenacious in refusing to enforce even the treaty fights of Englishmen, and had confiscated and appropriated many estates which were afterward restored. We had also several treaties, — some of which were with nations to whom we desired to extend special favor, — which had provided for rights in real estate on the theory that' aliens could not otherwise have the rights of citizens, and all our treaties required reciprocity of rights in the people of both countries. We never had a treaty with Great Britain which gave protection to future purchases of land, or which allowed British subjects to inherit any lands, éxcept such as were owned by British subjects prior to 1794. At the date of the act of Congress of 3807 the policy of the Government had become settled. The treaty of peace protected estates then owned.—Orr v. Hodgson, 4 Wh. 463. The treaty of 1794 protected titles lawfully existing at that time.—Id. Blight’s lessee v. Rochester, 7 Wh., 535; Craig v. Radford, 3 Wheat., 594. But titles accruing after the treaty of 1783, to British subjects dying before the treaty of 1794, were not protected, and did not pass to heirs under the latter treaty, but escheated.—Blight's. lessee v. Rochester. The treaty with Spain, in 1795, (8 L. U. S., 144) allowed one who would have taken by descent, if he had not been an alien, a reasonable time to sell— Art. XI. The same clause is found in Article X. of the treaty of 1799 with Prussia.— 8 L. U. S., 166. The convention of 1800, with Prance, provided more expressly that where aliens could not inherit they might sell to citizens.—8 L. U. S., 182. These treaties did not allow the heir to hold indefinitely. No such qualified privilege was ever extended to British subjects after 1794, and the treaties referred to with the continental powers at first, were temporary. And we have already seen their language was not enlarged so as to apply to descents cast after they expired, even though the estates originally vested under them.

There was no occasion for any such interpretation, in order to secure the benefits of the law. The naturalization laws in force at the time, and wdaich continued in force after the death of John Harvey and Maria Reeder, provided that aliens, who had been in the country prior to April 14, 1802, might become citizens at any time, without the necessity of waiting three years after declaring their intention (2 L. U. S., 154, 292), and when any alien who had declared his intention, and who had caused himself to be properly registered, died before actual naturalization, his widow and children were to be considered citizens and entitled at any time, without preliminary declaration, to take the oath and become entitled to the rights and privileges of citizens.—2 L. U. S., 293. There was nothing to prevent a sale at any time, and every disability could be removed by act of the parties concerned, if they chose.

The laws of Congress manifest a disposition to open the door as wide as possible to induce aliens to become citizens. But they show as plain an intent not to give any special privileges to aliens who do not comply with the statutes. And- it is imposible to give a statute, which simply declares that certain persons who are in actual possession, occupancy, and improvement, and who have succeeded to the claims of others who were in, under similar circumstances, shall be entitled > to an estate in fee, such a construction as would transmute it into a statute for making aliens entitled to receive and transmit by inheritance, without doing violence to all rules, and assuming an intent at variance with the known policy of the times. The disability of- alienage had never any dependence on .feudal tenures, but always rested on the broader principle that .States are organized for the benefit of their own people, and that those who arc not within the allegiance can have no clgim beyond what the law sees fit to give them. In Dawson’s Lessee v. Godfrey, 4 Cr., 321, the United States Supreme Court expresses the true doctrine on this subject. They say: “Much of the difficulty in satisfying the mind on this subject vanishes upon a just view of the nature of the right of inheritance. G-entlcmen have argued upon it as if it were a natural and perfect right; whereas it has its origin in, and is modified to infinity by the laws of society, in .exercise of the right of territorial jurisdiction. To be entitled to inherit in the State of Maryland, a right should be made out under the laws of that State. As the common law, which is the law of Maryland on this subject, deprives an alien generally of the right of inheriting, it is incumbent upon the plaintiff to establish some exception in favor of his case. But I know of no exception, -at common law, which gives the right to inherit distinctly from the obligation of allegiance existing either in fact or in supposition of law.” In Orr v. Hodgson, 4 Wh., 453, the language of the Court is equally emphatic. In that case the American nieces of an intestate, who was a British subject holding la,nds held to be protected by the treaties of 1783 and 1794, were allowed to inherit to the exclusion of her own descendants, who were Italians. The Court say: “It cannot be presumed, that the treaty stipulated for benefits to any persons who were aliens to both ■governments. Such a construction would give to this class of cases privileges and immunities far beyond those of the natives of either country; and it would also materially interfere with the public policy common to both. We have, therefore, no hesitation to reject any interpretation which would give to persons, aliens to both governments, the privileges of both; and in this predicament are the children of the Countess Barziza. The rule, then, of the common law, which gives the estate to the next heirs having inheritable blood, must prevail in this case.”

If non-resident aliens came within the statute for any purpose, so as to receive the benefits which enlarged a tenancy without title into a freehold of inheritance, it was not chiefly for their benefit that the laAV was passed. It was evidently designed chiefly to protect settlers who had become citizens by not electing to remain British subjects, or whose children, at all events would be native citizens. It has been held in some cases, where a legislature has confirmed rights to an alien and his heirs by name, a design to give them heritable blood must be inferred. But an act that names no one, and says nothing about aliens at all, and requiring no such construction to give it operation, does not stand on the same footing. At common law the king could grant authority to an alien to take land and have it descend to his after-born heirs; but it was held that a patent to such a person and his heirs could have ho such double operation as to pass a fee and create the power to inherit also. Brooke’s Abr. “Patent” 63; 4 Cond. R., 339, 340. A law may have such an effect where the intent is apparent, but - the construction, put by the United States Supreme Court upon the treaties providing exceptions to the disabilities of alienage, shows that this statute cannot fairly be so construed. See also Brown v. Sprague, 5 Denio, 545, and Governeur’s Heirs v. Robertson, 11 Wh., 332, for a construction of New York and Virginia statutes. In Colgan v. McKeon, 4 Zabr., 566, a statute allowing aliens to purchase and hold lands, to themselves and their heirs, was confined in its effect to such heirs as might have inherited from a natural-born citizen, and that alien heirs could not take under it.' See further Stemple v. Herminghouser, 3 Iowa [Greene), 408.

If John Harvey was an alien he could have no heirs. If he was a citizen no alien could inherit his estate. • In either case the title escheated on his death. And if Maria Yorke Harvey had any interest in the land, that also escheated; for at the time of her death there was no law in force authorizing aliens to hold or inherit lands. The statute of March 31, 1827, did not take effect until January 1, 1828, which was some months after her death.—R. L. 1828, p. 614, sec. 2.

• The question then arises, whether the title by escheat passed to the Territory or to the United States.

There are various methods, whereby, at common law and under the English statutes, property is said to escheat, that word being used to signify every failure to pass title in the ordinary course of descent to legal heirs or representatives, whether for realty or personalty, and whether for breach of condition, crime, or default of inheritable qualities. And the person or authority entitled to escheated property was not always the same, — some escheats going to private persons, and some to public persons. A glance at the leading features of the English law of escheats will show the difficulty of finding exact -analogies here.

First, there were escheats for felony, whereby the inheritable blood was destroyed, and whereby the fee of the land passed to the lord of the manor to which it was attached, except where land was held directly of the king, when it. went to him. But in all attaints of felony, the king took the land for a year and a day, with unlimited power of waste, and the lord took the inheritance thereafter.—2 Inst., 37; 3 Inst., 392. And personal estate was in all cases forfeited to the crown, as well as chattels real.—4 Bl. Com., 387. But the forfeiture for felony (unlike that for treason) is a branch of the feudal law, and relates directly to the condition of feudal tenures. It did not depend solely upon the character of the crime, and was not inflicted merely as punishment on behalf of the sovereignty.—Tomlyn L. Dic. “Forfeiture, II.;” 2 Com. Dig. “Forfeiture” (B.5) note (m). Audit seems that the king’s year and day was originally by allowance of the lord of the fee by way of composition for the waste, which is not men-mentioned in Magna Gharta, and which, although the only original penalty on the land, is said to be an encroachment when added afterwards to the year and day.—Com. Dig. “Ann, Jour, et Wast.” “Forfeiture,” B. 5, note {l). But there was no forfeiture whatever in favor of the king or of the lord in lands held in Gavelkind, which was the ancient tenure previous to the introduction of feuds, and which was said to have been secured from the Conqueror by the compulsion of the free men of Kent. — 1 Record Commission Rep., 492 ; Com. Dig. “ Gavelkind;” Tomlyn Die. “ Gavelkind.” It is said that the Kentish men have an old saying concerning this- immunity, “The father to the bough, and the son to the plough.”— Bacon “ Use of the Law;” Com. Dig. “Gavelkind Spelman Gloss., “ Gavelkind.” And there was no forfeiture of any lands, however held, for offenses committed on the sea, or beyond seas, if not tried according to the course of common law, and then it accrued only by virtue of the statutes.—1 Hale P. C., 354-5.

Nevertheless, in Gavelkind lands, when the felon was outlawed or abjured the realm, his estate escheated; which could only be in that case because of his being put out of the benefits of his allegiance, and becoming to a certain extent like an alien, and thereby deprived of heritable blood.

In treason the lands of the person attainted, held in freehold, were forfeited to the crown and not to the lord; and this is said to have been the law before the establishment of the feudal system in England.—p Bl. Com., 383. jThis extends to Gavelkind lands. — 1 Hale P. C., 360. But not to copyholds, which go to the lord by escheat. — Com. Dig. “Copyhold M.” And the-term “escheat” is said not properly to attach to this class of forfeitures, which belong to the crown by right of prerogative.—1 Hale P. C., 253. These prerogative forfeitures accrued to the counties palatine and other possessors of royal franchises, as jura regalia, the Bishop of Durham holding that right and obtaining the manors of John de Baliol and Robert Bruce by forfeiture of ward.—1 Hale P. C., 254-5. They did not belong to’ the lord of the fee.

, A third class of escheats embraced cases, where tenures held of. the king were -forfeited for breach of conditions, express or implied, and require no notice.

A fourth class included cases where the heritable blood was exhausted, by failure of heirs competent to take, in which the land became re-attached to the seigniory for want of a proper and qualified tenant; lands held by feudal tenure being subject to that condition, and the failure operating in the nature of a breach of condition. Abd such lands only escheated to the king, when not held of any intermediate lord. — Com. Dig. “ Escheat.”

But when lands were granted to aliens, they took for the king’s profit, and he could seize the lands by office found during the tenant’s life, and upon his death succeeded to the estate in all cases, without reference to the lordship of which it was holden.—1 Inst., 2. But no alien can inherit or transmit by inheritance.—1 Com. Dig. “Alien (C.)1 Bl. Com., 372; 2 Bl. Com., 293; Governeur’s heirs v. Robertson, 11 Wh., 332; Craig v. Leslie, 3 Wh., 563; Orr v. Hodgson, 4 Wh., 453; Fairfax v. Hunter’s Lessee, 7 Cr., 603; Blight’s Lessee v. Rochester, 7 Wheat., 535. The right to the inheritance of the lands of aliens is not a feudal right, but it was ancient common law that the king should have the escheat of the lands of all Normans and aliens, cujuscungue feocli fuerint. — Oom. Dig. “Prerogative,” D. 59. We have no forfeitures for crime which divest the freehold; but the case of lands to which no-lawful heir exists, must arise in every country. We have no tenures which would stand between the Government and the estate, and it becomes, therefore, a very narrow inquiry, where the escheat shall go.

It would seem to be an obvious answer, that it must go where the law directs. Tenures and their incidents and the rules of inheritance are all the creatures of law, and except as to rights already vested, may be changed and modified at pleasure. And it was for the law-making power, that could control lands and their enjoyment in Michigan, to direct where lands should go for default of heirs, as it was to direct who should be regarded as heirs at all. For there is no such thing as a natural line of inheritance independent of the law.—2 Bl. Com., 11; Bacon’s Maxims of the Law, Rule 11.

If Congress had seen fit to provide for such cases, we think it had power to do so. We are not prepared to question its authority on any theoretical grounds arising out of the conditions of cession; although those conditions are significant in construing the Ordinance. . This region was acquired by treaty, and did not come into the actual possession of the United States until after the Constitution was adopted, and it was held in U. S. v. Repentigyiy that the United States succeeded directly to the. rights of the French and British governments, which had complete supremacy. But the Articles of Confederation made no provision for the direct legislation of Congress over the local affairs of any part of the country, and such direct government, while possibly it might have been lawful, would have been at variance with the whole theory of local government, which had been acted upon both by States and colonies. The delegation of legislative powers to the Territories was practically a necessity, and the Ordinance of 1787, while retaining a right of veto or disapproval of the acts of the Governor and Judges, provides expressly that such laws as are not disapproved shall only be repealed by the local authority. No one can read the Ordinance without perceiving that it was intended to throw the whole regulation of local affairs upon the local government. The public lands were not to be interfered with till they had been severed from the public domain by primary disposal. But when they had become private property, they came, like all private rights, under local regulation.—Carroll v. Safford, 3 How. R., 441.

Immediately after the government of the United States was organized under the Constitution, a brief statute was passed to adapt the Ordinance to the Constitution; — not to change its nature, — but, as stated in the preamble, in order that it “ may continue to have full effect.” And so long as the system should continue, the whole local regulation was clearly delegated to the Territory, as it was afterwards to Michigan when separately organized.

Even under the old. common law notions the creation of such a government would be at the least an equivalent to the erection of a county palatine, and would transfer all necessary sovereign prerogatives. But under this ordinance the Territory only differed from a State in holding derivative instead of independent functions, and in being subject to such changes as Congress might adopt. But, until revoked or annulled, an act of the Territory was just as obligatory as an act of Congress, and for the same reasons.

The Ordinance of 1787 undertook to regulate the law of descents to a certain extent, but did not exhaust the subject. It adopted neither the common nor the civil law rule entire. It varied from the common law in abolishing primogeniture, and in putting females on the same-footing ,of heirship with males, and in not distinguishing between kindred of the whole and of the half blood. It was defect- ' ive also in not declaring, beyond a certain point, when heirs should take per stirpes, and when per capita, and in not directing by which law the collateral kindred and next of kin should be ascertained. As there was no common law of the United States to supply these defecls, further supplementary legislation was necessary. The Ordinance also was silent concerning failure of heirs and its consequence, and the common law of England was entirely inapplicable to many cases, even if it could then be regarded as in force, as it certainly was not in Michigan. Accordingly the Ordinance, in providing this imperfect rule of descents, declared that it should be operative until altered by the Legislature of the district.

It was argued on the hearing, that this legislature meant the popular assembly provided for in the distant future, and not the legislative board of Governor and Judges, authorized to adopt laws in the first instance. Wc do not think it would change the case at all if this should be the construction, for it 'would still be competent to supply the defects of the Ordinance, and to cover wbat it had omitted, and if there had been no new legislation, the failure of heirs must of necessity — in the absence of any statute— bring the land within the regulation of the Territory. Congress never legislated upon the subject, and there has never been an instance of an escheat claimed to have accrued to (he United States since they came into existence. In the Repeniigny case the forfeiture occurred before the country came into the hands of the British government, and was therefore a part of the domain acquired by treaty; and the Supreme Court declared that, by the treaty, our government succeeded to the rights of its foreign predecessors. When resort is had to office-found, — a subject which will'be referred to presently, — that process is not in that class of cases the origin of the title, but it relates back to the forfeiture. In that case there was no office-found, beyond a legislative-disposal.

There are parts of the Ordinance providing for the distribution of taxes, and prohibiting interference with the public lands, where the term “Legislature of the district” must include the Governor and Judges. And this was the practical construction from the beginning. The law of descents and intestacies as adopted by that body was never disapproved by Congress, and has been regarded from its date as the law of -the Territory. It is too late now to raise any such question. But in regard to escheats the Ordinance was entirely silent, and the act passed October 1, 1818, declaring that they should “ accrue to the Territory,” was not in conflict with the Ordinance. The succession act April 12, 1827, was in this respect identical. The act of Congress, of June 15, 1836, preliminary to the admission of the State into the Union, accepts, ratifies, and confirms the Constitution; and the Constitution (Schedule, section S) provides that “all fines, penalties, forfeitures, and escheats accruing to the Territory of Michigan, shall accrue to the use of the State.” We think the State of Michigan became thereby entitled to the premises in controversy.

The next question presented is whether the title is affected by lapse of time. The first act of limitations made to operate against the State, was passed in 1846, and took effect March 1, 1847. — R. S. 1846, 600. The statute does purport to be retrospective, and the general saving clause provides that all actions and rights concerning land shall be governed by the statutes in force when they accrued. Section 9. This has always been our policy, and the fact that the sections are not in regular order, and that Section 9 precedes the State limitation, cannot affect its operation, .for Section 9 qualifies the whole chapter. The reason why limitations against the State should not operate without express statute, is vindicated in Lindsey v. Miller’s lessees, 6 Pet., 666, where it is said that otherwise “the public domain would soon be appropriated by adventurers. Indeed, it would be utterly impracticable, by the use of any power within the reach of the government, to prevent this result.” And the difficulties of such a case as the present, show the propriety of adhering to the rule, for the Territory was very thinly settled, and even now the State has no officers who have- authority or facilities to make such investigations as would enable them in such a case as this to ascertain, without much difficulty, whether Edwin Reeder was rightly or wrongfully in possession. The doctrine of presumption of title from ancient grant is quite as inadmissible. If such a presumption can ever be allowed to dispute the accuracy of the public acts and records, it cannot be permitted when there is in the case positive and unquestioned evidence showing that no title existed or was ever set up on behalf of Reeder beyond-his assumption of possession. The claim is inapplicable to the facts.

It remains to be considered whether the right of the State could be transferred to the plaintiff before proceedings in the nature of office found. The doctrine relied upon is supposed to have required this as a preliminary to obtaining a right of entry, and an actual or constructive entry was by the common law very generally required to complete the operation of a title. The doctrine is briefly stated by Comyn Dig., “ Prerogative,” D. 6, as follows: “ In all cases when a subject shall not have possession in deed or in law, without entry, the king will not be entitled without office found, or other matter of record.” The examples given are all cases of forfeiture. And in title headed “Prerogative,” D. 70, “when an office is not necessary,” it appears very clearly that it never was necessary in such cases as this. “If a possession in law be cast upon the king, no office is necessary, but the king may seize without it; as if the king has a title by descent in remainder, or reverter; for the freehold is cast upon the king by law. Stamf. Praer. R.. 54 a; 4 Co. 58, or is entitled by escheat” And under “Prerogative,” D. 71, it is said that it shall be an intrusion in a man “if he enters upon a possession cast upon the king by descent, escheat, etc., before entry by the king/’ and that “An intruder upon the king does not gain any free hold in the land.” And “ at common law, upon an information of intrusion, the king by his prerogative might put the defendant upon showing his title specially.” D. 74-

There was an obvious propriety in requiring some preliminary ascertainment of the fact, in all cases where the escheat is from a forfeiture for misconduct, or for breach of conditions. But where the estate devolves upon the government in a natural way by what is in fact only a canon of inheritance, there could be no sound reason for holding such a proceeding necessary. And accordingly it was never necessary when the freehold came to the king directly by act of law and not by reason of the act of the party. Upon this there is no conflict or uncertainty among the authorities. Thus in Brooke’s Abridgement: “ Office devant eschetour,” 84, it is said “That in divers cases the king shall be seized without office, as when the king’s tenant dies without heir, or if a man be attainted of treason, or if the king’s tenant grants in tail and the donee dies without issue; and the same law when the king grants land for a term of life and the lessee dies, for freehold cannot be in suspense. Contra of alienation in mortmain or alienation by the king’s tenant without license. And it seems that an entry by a stranger in the former case does not alter the case, for if the king is seized by the law without office, a stranger by his entry cannot divest the freehold out of the king; but quaere if the king’s grant be good in such cases without office, because by statute 18, H. 6., Cap. 6, grant before office shall be void.” So Lord Hale, referring to the distinctions created by statute in regard to forfeiture of entailed estates for treason, says that until the 33 H. 8., which vests all in the king without office, if tenant in tail had been attainted of treason, and died in that interval, the land would have descended' to his son till office found; 'but otherwise in case of tenant in fee simple attainted and dying without office, the freehold is cast upon the king without office, because none could take it else. 1 Hale P. C., 242. And since office found had been required by statute for certain purposes, the distinction has always been recognized between those cases where it gives title, and those where it is merely for information of title already passed. In the one case the king was entitled to the mesne profits after tlie escheat, while in the other he was hot. Tomlyn Dic., “Office Found;” Com. Dig., “Prmrogative. D. 68.” For in case of forfeiture, properly so called, the forfeiture was not ‘complete before seizure. 1 T. P., 252; 3 T. R., 730, 734.

If during the life of an alien it is sought to divest him of the freehold, it can only be done by legal proceedings, but upon his death, not having any heirs, the freehold at once vests in the king. Co. L., 2 b.; Com. Dig., “ Alien,” C. 2, C. 4.

The freehold must always vest somewhere, and it is on this account that the authorities uniformly hold that whenever there is a defect of heirs, the title passes at once. This rule is clearly stated in Mooers v. White, 6 J. C. R., 360; Slater v. Nason, 15 Pick., 345, 349; Fairfax v. Hunter’s lessee, 7 Cr., 603; Montgomery v. Dorion, 7 N. H., 475; Rubeck v. Gardner, 7 Watts, 455; O’Hanlin v. Den., Spencer, 20 N. J., 31, 21 N. J., 582.

If, then, the title of the State did not pass to the plaintiff, it was not because it was imperfect or inchoate, but for some other reason. And it is claimed that grants of land, out of possession and not actually seized into the custody of the State, are void at common law, as against public policy. The cases cited to sustain this proposition find nothing in the common law to maintain them. It was only by statute that such grants were forbidden. The king “may grant lands which come to him by descent or escheat before office found; for the freehold is cast upon him by law.” — Com. Dig., “Grant, G. 1.” “So if lands forfeited for treason are vested in the king by the Statute 88, H. 8, or any particular statute, the king may grant them before office found, notwithstanding the statute 18 H. 6, 6, 2 Rol. 184 l. 40.” — Id. And while at common law the right of entry against one in by adverse title did not escheat for treason, yet a right of entry against a mere disseisor or abator did, and although an inquisition or seizure was necessary in such case to put the king in actual possession, yet it appears that in spite of the statute 18 H. 6, 6, he could grant the right before such seizure; only in making such a grant it must have been special, not of the land, simply, but of the right to the land, otherwise neither land nor the right of entry passeth.—1 Hale P. C., 243, citing Dowty’s case 3 Co. R., 10 b.

The English statutes were repealed entirely by the Governor and Judges in 1810, They arose out of a state of things which never existed in this country, and in connection with doctrines concerning titles to land which were entirely inapplicable to any but a densely settled region, and a system of feudal tenures. Immediately after the Conquest the whole realm of England was so thoroughly surveyed by the orders of William, for the purpose of ascertaining the tenures of lands and their occupants, and every estate was noted in Domesday Book, with all matters concerning it. As the Saxon Chronicle declares: “ So diligently did he

direct the land to be surveyed, that there should not be a single hyde or perch of land, nor an ox or cow or hog, passed over which should not be brought into the census.” 1 Rec. Com. Rep., 384. Escheators were appointed annually in every county to make inquests of titles by escheat, and it would have been practically almost impossible for an estate to lapse without discovery. There were few vacant lands, and the owners were in possession in many, if not most cases by tenants, whom it would have been a hardship to disturb without some showing. And the nature of the tenures led to a policy disfavoring any dealing with titles by those out of possession. Accordingly an entry was usually necessary to enable the owner to deal with his property. And where land 'was held adversely the same policy avoided any conveyance of it by the party out of possession. The whole system is a relic of feudalism, and while there may be some foundation for such a policy in order to prevent litigation, that is not the legal basis of it-

But, be this as it may, there was no such obstacle at common law to the operation of a royal grant of escheated lands. Nor, under the statutes of this State, can there be room for any such doctrine. Under the law regulating the action of right, in force when both Harvey and Mrs. Reeder died, it was provided expressly that actual entry should “ not be necessary to have and maintain the action of right, or any other action to recover the title or possession of land;” and “that actual livery of seizin, nor any particular words, symbols, forms, or ceremonies, indicative thereof, shall not, in any case or proceeding, be requisite.” — L. 1821, p. 885. In a country where nine-tenths of the lands were unoccupied and owned by non-residents, and where it was a very easy thing to take wrongful possession without detection, the rule requiring entry was as inapplicable as the ancient remedy, by battle or by grand assize, and the attendance of four knights girt with swords, — all of which antiquities were dispensed with by this same statute.

The case of Bruckner’s Lessee v. Lawrence, 1 Doug. R., 19, laid it down as common law that land held adversely could not be lawfully conveyed. The decision did not strike the profession very favorably, and in the subsequent case of Stockton v. Williams, 1 Doug. R., 546, it was practically nullified, by holding that the deed was good by way of estoppel, and that the grantee could sue in the grantor’s name to recover the land. The attention of the Legislature being called to the matter, a provision was inserted in the revision then under discussion, whereby the whole doctrine was swept away.—R. S., 1846, p. 268, § 7.

We think, therefore, that there is no foundation for the claim that the land was not lawfully granted by the trustees.

It is not very important to spend much time in discussing the points of evidence raised. As against a mere intruder, without color of right, the English rule at common law seems to have allowed the Government, upon information of intrusion, to require him to disclose and plead his title, as a corporation is called upon to set up its franchises on an information for usurpation. But the theory of our action of ejectment seems to require the plaintiff to make out a prima facie title before the defendant can be compelled to answer it. In cases of escheat, however, the proof cannot be required any more than in other cases, to exhaust all the possibilities. Death of the tenant and no appearance of the persons claiming as heifsat-law, was held, in The People v. Fulton Fire Ins. Co., 25 Wend., 205, to be sufficient to put the defendant to his proofs. In cases like the present, where aliens were disqualified, proof of the alienage, and of the American marriage and death without' issue, was enough, because no heirs were possible on that hypothesis.

The same remark will apply to Eliza Eeeder’s statements. The persons referred to could not have inherited, and the evidence could not be received to affect, the plaintiff’s case. But we also think it was inadmissible under any circumstances, until persons were shown to be in existence who could be connected, by the declarations, with the deceased. While hearsay is admissible for many purposes connected with pedigree, there is no authority holding that the existence of living persons can be proved by it, still less that it can be received to prove such existence when it furnishes no means of finding or identifying them. Even if persons were known to have been in existence in 1827, that presumption would not exist now without more recent proof.—3 Phil. Ev. (Edwd.’s Ed.), 598.

The novelty of the questions involved has induced us to discuss them more at length than we should have felt justified in doing under any other circumstances, as the rights of the parties are not involved in any other difficulty than •what was supposed to have arisen out of a state of law which is not applicable to our land system.

Judgment must be reversed and a new trial granted.

The other Justices concurred.