JUDGE, J.
The first affirmative charge given by the court, and the charge requested and refused, involve the same legal question, decisive of the cause, as it is presented by the facts incorporated in the bill of exceptions.
The inheritance of lands is not, except from necessity, by the ancient common law permitted to rest in abeyance. Such an estate was odious, because, during its continuance, “there was not seisin of the land, nor any tenant to the praecipe, nor any one of the ability to protect the inheritance from wrong, or to answer for its burdens and services. On this reasoning a particular estate for years was not allowed to support a contingent remainder in fee. The title, if attacked, [414] could nov be completely defended, because there was no one in being whom the tenant could pray in aid to support his right; and, upon a writ of right patent, the lessee for life could not join the mise upon the mere right. The particular tenant could not be punishable for waste, for the writ of waste could only be brought by him who was entitled to the inheritance.” 4 Kent, 280. One of the reasons supporting the rule in Shelley’s case was the prevention of an abeyance of the inheritance. A result of this doctrine was, that when lands were claimed by descent, the capacity to take must have existed in the heir at the instant of the death of the ancestor. “We have no doubt,” say the supreme court of the United States, “that the correct doctrine of the English law is that the right to inherit depends upon the existing state of allegiance at the time of the descent cast.” Dawson v. Godfrey, 4 Cranch, 322. In the case of People v. Conklin, 2 Hill (N. Y.), 67, the same rule is affirmed, and subsequent naturalization declared not to operate retrospectively so as to confer capacity and prevent an escheat. Such would have been the operation of naturalization, if the title had been acquired by purchase, and not by descent. Harley v. The State, 40 Ala. 689. The distinction rested on the common law rule, that an alien could by purchase take an estate in lands, which was defeasible only by proper proceedings for an escheat at the instance of the king, or here at the instance of the State. Taking such an estate, defeasible only at the will of the sovereign, good as to all the world beside, the freehold was not in abeyance — it resided in him, until office found, and then rested in the sovereign. Harley v. The State, supra; Jenkins v. Noel, 3 Stew. 60; Smith v. Zaner, 4 Ala. 99. Having no inheritable blood, incapable of taking or of transmitting by descent, as the freehold cannot be kept in abeyance, without any inquest of office, it escheated and vested in the sovereign on the death of the alien, or when the ancestor died not leaving an heir capable of taking by descent. The law, which nihil facit frustra, will give no estate which it does not enable the donee to keep. 2 Kent, 15; 1 Scrib. Dow. 177; Bartlett v. Waring, 9 Port. 266; Smith v. Zaner, supra.
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JUDGE, J.
The first affirmative charge given by the court, and the charge requested and refused, involve the same legal question, decisive of the cause, as it is presented by the facts incorporated in the bill of exceptions.
The inheritance of lands is not, except from necessity, by the ancient common law permitted to rest in abeyance. Such an estate was odious, because, during its continuance, “there was not seisin of the land, nor any tenant to the praecipe, nor any one of the ability to protect the inheritance from wrong, or to answer for its burdens and services. On this reasoning a particular estate for years was not allowed to support a contingent remainder in fee. The title, if attacked, [414] could nov be completely defended, because there was no one in being whom the tenant could pray in aid to support his right; and, upon a writ of right patent, the lessee for life could not join the mise upon the mere right. The particular tenant could not be punishable for waste, for the writ of waste could only be brought by him who was entitled to the inheritance.” 4 Kent, 280. One of the reasons supporting the rule in Shelley’s case was the prevention of an abeyance of the inheritance. A result of this doctrine was, that when lands were claimed by descent, the capacity to take must have existed in the heir at the instant of the death of the ancestor. “We have no doubt,” say the supreme court of the United States, “that the correct doctrine of the English law is that the right to inherit depends upon the existing state of allegiance at the time of the descent cast.” Dawson v. Godfrey, 4 Cranch, 322. In the case of People v. Conklin, 2 Hill (N. Y.), 67, the same rule is affirmed, and subsequent naturalization declared not to operate retrospectively so as to confer capacity and prevent an escheat. Such would have been the operation of naturalization, if the title had been acquired by purchase, and not by descent. Harley v. The State, 40 Ala. 689. The distinction rested on the common law rule, that an alien could by purchase take an estate in lands, which was defeasible only by proper proceedings for an escheat at the instance of the king, or here at the instance of the State. Taking such an estate, defeasible only at the will of the sovereign, good as to all the world beside, the freehold was not in abeyance — it resided in him, until office found, and then rested in the sovereign. Harley v. The State, supra; Jenkins v. Noel, 3 Stew. 60; Smith v. Zaner, 4 Ala. 99. Having no inheritable blood, incapable of taking or of transmitting by descent, as the freehold cannot be kept in abeyance, without any inquest of office, it escheated and vested in the sovereign on the death of the alien, or when the ancestor died not leaving an heir capable of taking by descent. The law, which nihil facit frustra, will give no estate which it does not enable the donee to keep. 2 Kent, 15; 1 Scrib. Dow. 177; Bartlett v. Waring, 9 Port. 266; Smith v. Zaner, supra.
The capacity of the appellees to take the premises in controversy by descent must be determined by the law as it existed in 1859. If they had not capacity then, however it may have been enlarged by subsequent laws, such laws cannot operate restrospectively to divest an estate in lands which then vested in the State. Or, if it did not vest in the State, was in abeyance from the death of the ancestor, without a [415] tenant, and without seisin, until the capacity of the appellees was enlarged. At the death of the ancestor they were not citizens of the United States, nor were they, so far as any relation they could have with other States, or with the citizens of other States, citizens of Ohio. They were merely residents oí that State, entitled to whatever of right or privilege the law of the State granted them. Such rights or privileges could at any moment have been withdrawn by Ohio, and without any positive violation of law, or any offense by the appellees, their continuous residence could have been forbidden. Their condition was peculiar and anoma-' lous. It resulted from the mode in which their ancestors were originally introduced into this country, and the condition of inferiority and subordination to the dominant race to which the law consigned them. They were not aliens, but natives, born within the dominion of the govez'nmezzt. They were inhabitants and subj eats of the State, bouzzd to obey its laws, subject to its burdens, and entitled to protection in person, in life and liberty and property, so long as their residence was permitted. The status they bore was entirely derived from the permission or grace of the State of residence. It was a species, of denization dependezzt on the donation of the State. Scott v. Sanford, 19 How. 393. The extent to which rights and privileges accorded to the free negro in the State of his residence would be recognized in other States, was dependent on the comity of such States. One State could and did recognize them to a greater extent than another. All comity between States and citizens of different States, so far as rights, privileges and immzzzzities are not guaranteed by the Constitution of the United States, rests on the principle that it cannot be extended, in violation of the laws and policy of the State. The extension of comity in violation of the law and policy of the State would have been an abdication of the law and sovereignty of the State, and a recognition of the superiority, not the equality, of the foreign State. Every State judged for itself, of the nature, extent, and utility of the recognition of foreign laws, respecting the state and condition of persons, and was not bound to recognize them when prejudicial to their own interests. Story Conf. Laws, § 36. The right of aliens to reside here, to acquire personal property, the successiozi of aliens to such property, has long been recognized. Yet until recently, in this State, there was no relaxation of the rigid rule of eoznmozz law, that they could not take, hold and transmit real estate. The distinction between the two kinds of property, though it may be said to have had its origin in [416] reasons not now of the practical importance and value formerly attached to them, was observed and enforced. It may well be conceded that in 1859, at the death of their ancestor, the appellees being residents of Ohio, entitled to rights and privileges under its laws, would, because of the comity extended by the States one to another’, independent of constitutional guaranty, have been entitled to all the rights and privileges here of an alien, except that of residence, or to all the rights and privileges they enjoyed in Ohio, except so far as they were abridged by positive law, or a well defined public policy, without affecting the question presented. The law of this State then positively prohibited them from acquiring a residence here. If they came and did not depart in thirty days after warning, they became felons, subject to imprisonment in the penitentiary. Code of 1852, §§ 1033-1044. The question then resolves itself into the simple inquiry, can the residents of another State, incapable of residence here, without felony, take lands by descent — can they become freeholders of the State? The policy or spirit of the law then existing is not matter for our consideration or defense. It remained on the statute book for more than thirty years, was born of a necessity generated by the continued unconstitutional assault from abroad on the domestic institutions of the State, and contributed to preserve its peace and order. It was never doubted that its enactment lay within legislative competency, and it became obsolete only with the destruction of the institution it was intended to preserve. If any now denounce it as harsh, or cruel, or unjust, the denunciation should fall on those who created the necessity for, and not those whom self preservation compelled to its enactment. We cannot hold that one who is incapable of residence, or of acquiring citizenship here, can take lands by descent. One of the reasons, and perhaps that of greatest force now, which prevented an alien from taking lands at common law, was “ because an interest in the soil requireth a permanent allegiance, which would probably be inconsistent with that he oweth to his own natural liege or lord.” 1 Bac. Ab. 201. The reason why lands descending to an alien could not be taken by him, was that “the king could not oblige his person and services.” Ib. 203. The man who cannot become subject to the laws of the State, amenable to the jurisdiction of its courts, cannot be obliged to the services of residence or citizenship — cannot be a freeholder. The freeholder was the liber homo of the common law, to whom the guaranties of magna charter extended, and if the lord gave an estate to a man and his heirs, he made the [417] tenant a freeman, if he had not been so before. 1 Wash, on Real Prop. 29, 45. “To constitute a perfect title there must be the union of actual possession, the right of possession, and the right of property. These several constituent parts of title may be divided and distributed among several persons, so that one of them may have the possession, another the right of possession, and the third the right of property. Unless, they all be united in one and the same party there cannot be that consolidated right (that jus duplicatum, or the droit droit, or the jus proprietatis et possessions), which, according to the ancient English law, formed a complete title.” 4 Kent, 411. • “A title is thus defined by Lord Coke: Titulus est justa causa possidendi id quod nostrum, est; or, it is the means whereby the owner of lands hath the just possession of his property.” 2 Black. 195. An estate of freehold is defined to be “the possession of the soil by a freeman.” 2 Black. 103. Thus, we see the light of possession is an essential element of a freehold estate. An incapacity to take and hold such possession is of necessity inconsistent with its existence. If this estate had devolved on the appellees, they could never have entered in possession, nor could they have conveyed to another the right of entry, because it ivas not in them to convey. We concur in the argument of the learned counsel for the appellant, that the law does nothing vain or useless, and that it would have been an absurdity to cast on the appellees the descent of the premises, and yet have said to them, if you come to hold and enjoy, it is at the peril of becoming felons and punishable as such.
The' question now presented was not decided in Tannis v. St. Cyr, 21 Ala. 449. The court expressly say, “It will be observed that we do not decide the question as to the right of a free person of color to inherit lands in this State, where the descent was cast since the passage of the act of 1832, and the heir was not a resident of this State on the 1st day of February of that year.” The argument of the court sustains our conclusion. It rests on the ground that prior to the act of 1832 the residence of free persons of color was not inhibited. The act of 1832, incorporated into the Code of 1852, did inhibit such residence and incapacitated them from the performance of the duties on which the common law founded the right of inheritance.
The court erred in the charge given and in the refusal to charge as requested, and the judgment must be reversed and the cause remanded.