Etheridge v. Doe ex dem. Malempre

18 Ala. 565

• Court: Supreme Court of Alabama
• Decided: January 15, 1851
• Status: Published

Opinion

CHILTON, J.

This was an action of ejectment, brought by the defendant against the plaintiff in error, to recover a half section of land, composed of four eighty acre tracts adjoining each other in the corners of sections 27, 28, 33 and 34, in township 20, range 11, west, &c., in Tuskaloosa county.

It was agreed in writing between the attornies, in the court below, to dispense with a jury, and that the circuit judge should determine upon the facts, as well as the law of the case, saving to each party the right to except to the admission or rejection of testimony, and to the judgment of the court. The court rendered judgment for the plaintiff below, upon the verdict which the presiding judge found in his favor.

1. We would remark, before proceeding to the consideration of the legal questions involved in the record, that as the attornies in the court below, by their agreement, dispensed with a jury and substituted the judge in their stead, the verdict which he has pronouaced upon the facts is not any. more the subject for our revision, than if it had been pronounced by the jury. In chancery causes, where the record must affirmatively show all the evidence necessary to sustain the decree, when the ground of objection to the decree is the want of such evidence, this court is required to scan it. narrowly and determine whether the facts proved warrant the conclusion- arrived at by the chancellor; but we know of no rule of law which requires of this court to revise the verdicts of the common law courts, and to set them aside, as not warranted by the testimony. The duty of determining the legal effect of granted facts is frequently devolved upon this court in common law proceedings, as on a demurrer to evidence, a special verdict, an agreed state of facts, or upon a charge predicated upon the whole testimony, when there is no conflicting proof that one or the other of the parties is entitled to recover. — 7 Port. 258; 9 ib. 39; 6 Ala. 753; 13 ib. 713; 15 ib. 276. In all these cases, however, the court does nothing more than to apply what it conceives to be the law to the facts as conceded, and is not bound to educe from the conflicting or contradictory evidence a conclusion as to its preponderance on the one side or the other. There is another class of cases where the court may be required to pass upon the evidence, not as establishing a fact, but merely as conducing to prove an hypothesis upon which a charge is predicated. Such cases occur when all the proofis disclosed by the record, and a charge predicated upon it is refused as abstract, or where a charge, which was given erroneously, is attempted to be rendered harmless upon the same ground; as in Hughes v. Parker, 1 Port. 139 — see Bradford v. Maberry, 12 Ala. 520; Clealand v. Walker, 11 ib. 1058. No other case occurs to us at present where it is made the duty of the court to pronounce upon the facts, and we are of opinion that although the consent of the parties cures the error of the judge being substituted for the jurj, yet such consent cannot place this court in the same cate-' gory, and require that we should weigh the testimony and determine whether the facts have been correctly found. So far then as it respects the conclusions of fact, we do not esteem it our duty to revise the action of the primary court, but will confine ourselves to the propositions of law asserted by the court, as we think it but a fair construction of the agreement that the opinions of the judge below on the law, when applied to the facts as found by him, should be the subject of revision, in so far as such opinions may be the foundation of the judgment which he rendered.

2. Both the plaintiff and defendant claim under Christopher Vanner, deceased, who, as ascertained by the judge in his verdict, was an alien at the time of bis death. It appears that one half of the land in controversy was granted by the United States to Christopher Vanner, and the other half to John Vanner, brother to Christopher, and who was also an alien; and that Christopher Vanner, after the death of John, which happened in 1821, occupied the whole of the premises down to the period of his death, having retained such possession for some fifteen years. On the 16th day of January 1844, the Legislature of Alabama passed an act, by the first section of which it is provided, “ That Francis G. de Malempre, of the city of Tuskaloosa, is declared and made capable of inheriting the real estate, whereof Christopher Vanner, deceased, died seized and possessed, in the same manner as if said deceased, the said Malempre and all persons, through whom he may claim the same, were natural born citizens of the United States. Sec. 2. And he it further enacted, that all title, claim, interest and demand which this State might have in the lands, whereof the said deceased died seized and possessed, are hereby vested in the said Malempre.” — Pamphlet Acts of 1843-4, p. 56. It is contended, on the part of the plaintiff in error, that this act of the Legislature is opposed to the 4th clause of the 8th section and 1st art. of the Constitution of the United States, which declares that the Congress of the United States shall have power to esíablish a uniform rule of naturalization, &c. It is very clear, that Congress having exercised the power eonfered by this clause in the constitution, no alien can become a citizen except in the mode pointed out by the act, and that the States respectively cannot naturalize aliens, or entitle them to all the privileges of eitizens, since by the second section of the fourth article of the Constitution, if made citizens in one State, they would be entitled to all the privileges and immunities of citizens of the several States, and thus each Stale would in effect legislate upon this subject for all the other States, which would be absurd. But although a State has no power under the constitution to make citizens aliens, yet it has the undoubted right to enact laws for the regulation of descents and succession to property within its limits. This power has never been questioned, and we are of opinion that the law passed in the case before us, enabling Malempre to inherit and hold the property of Vanner, is but the establishment of a rule of descent as to the particular estate of which Vanner died seized and possessed, and consequently is not at all subject to the constitutional objection urged against it.— See Montgomery v. Dorion, 7 N. Hamp. R. 475, and cases cited.

3. It is further insisted by the Attorney for the plaintiff in error, that conceding John and Christopher Vanner to have been aliens at the time of ther death, and that the land in question escheated, still the State of Alabama acquired no right to it by virtue of the escheat, but that it became re-vested in the U. S. Government, by which it was granted by patents to them. This position is rested upon the agreement and cession between the United States and Georgia of 24th April 1802, by which the United States acquired this territory, and by the ordinance adopted by the framers of the Constitution of this State, on the 2d August 1S19, by which the Slate of Alabama disclaims all right and title to the waste and unappropriated lands lying within her limits, &c.; and the counsel cites us to authorities to show that in England, when the blood of the person last seized became extinct and the title of the tenant in fee failed.for want of heirs, or by other means, the land reverted back to the original grantor, from whom it proceeded, or to his successors or descendants. Now, whatever may have been the doctrine of England with regard to escheats, founded as it was upon the feudal tenures, we feel satisfied that under the peculiar organization of our Federal and State Governments, and the relation which they bear to each other, this doctrine of reversion to the original grantor or proprietor does not obtain with us. It may be, that anterior to the period when Alabama was admitted as a State, and while the U. S. Government exercised jurisdiction over this country as a territony, escheated lands would have belonged to the United States-.: — See Williams v. Wilson, M. & Yerg. 248, but it is clear that after the admission of Alabama into the Union, such lands must necessarily vest in the Stale, as the sovereign within whose jurisdiction they escheat. The law regulating the succession to the estate emanates from the StaLe of Alabama, and the State has the power to determine, in cases where there are no heirs, who by the general laws of descent can take, in whom the title shall vest. In the case before us, the State has declared that all the title, which vested in it to the lands of w'hich Christopher Vanner died seized and possessed, shall vest in the defendant in error. When the United States sold the land in controversy, and issued patents therefor in accordance with law, the title became vested in John and Christopher Vanner to the parcels respectively granted to them; for although they were aliens, still they could take land by purchase and hold it until office found. —Jenkins v. Noel, 3 Stew 60; Smith v. Zaner, 4 Ala. 99; Com. Dig. Alien, c 4. An alien can also convey, and may bring an action to recover the possession. — Ib; see also, Shep. Touchstone, 232; 1 Mass. 256; 7 Cran. 603-20; 6 Johns. Ch. 366; 12 Mass. 143. In Montgomery v. Dorion, 7 N. Hamp. 481, it is said, if an alien purchases lands and die, the lands immediately vest by escheat in the State without any inquest of office. — Co. Lift. 2 b; 6 Johns. Ch. 366. Chancellor Kent holds the same doctrine. He says, whenever the owner dies without leaving any inheritable blood, or if the relations whom he leaves are aliens, there is a failure of competent heirs, and the lands vest immediately in the State by operation of law, and that' no inquest of office is requisite in such cases. — Citing 4 Co. 58 a, and Comyn’s Dig. Tit. Prerog. d 70. True, we have a statute as to the manner of taking the inquest and administering by escheators upon the estates of persons dying intestate, without heirs, (Dig. 189,) but we are of opinion that there is nothing in the statute, which prevents the title from vesting in the State eo instanti the party dies, and that it is competent for the State, by special enactment, to vest the same in a third party. The title cannot be in abeyance.

4. But a question is raised upon the construction of this act of the Legislature, namely, that its effect is merely to remove the disability'of alienage, under which Malempre-, and" those- under whom he claimed, labored, thus leaving him to prove that he is heir to the decedent. We are strongly urged by the-counsel for the plaintiff in error to adopt this construction. We think it more than probable that the act was passed, under the apprehension on the part of the Legislature that, the disability of alien-age out of the way, Malempre would succeed to-the estate by inheritance as the next of kin to Christopher Vanner. But if we place upon the act a construction which thus restricts its operation, how can we give effect to the second section,, which declares that the title and claim of the State are thereby vested in said Malempre. This section contains a Legislative grant, and as between the State, the owner of the land, and Malempre, to whom it is granted, it amounts to an unconditional investiture of title in the latter, if the State had the title. The Legislature not only say that he may inherit the land, as though he and all the parties under whom he may claim were natural born citizens, but the act goes further, and actually vests the title which the State had in him, not on condition that he should establish his heirship, but absolutely. It is not for the court to say that the act was passed under a misconception of the facts; it is sufficient that the State has vested the title in him by language so unambiguous as to leave no room for speculation as to its meaning.

5. The circuit judge was of opinion that the act in question passed a title to Malempre, not only to the lands of which Christopher Vanner died seized and possessed, but also to the lands patented to John Vanner, which Christopher had occupied some fifteen - years before his death, but of which there was no evidence of a legal seizin in him. Without stopping to enquire whether any length of possession would have given him a title as against the State, it is perfectly clear that possession for fifteen years did not. So far then as this record discloses, Christopher Vanner, although possessed of the land patented to John Vanner, had no shadow of title to it, since, as we have seen, both of them were aliens, and he could not have taken it by inheritance. Upon the death of John Vanner, the portion granted to him escheated to the State, and as the State and not Christopher was seized of it in law at the-death of Christopher, it is clearly not embraced in the grant to Malempre. We think it is clear that the court below erred in adjudging it to him.

6. In answer to the argument that when the Government grants land to an alien and his heirs, we mustimply that it confers with the grant the power to enjoy and transmit it, we need only say, that however true this may be as applicable to Legislative grants and donations, it does not hold good as to ordinary purchases of the public domain by an alien from the ministerial officers of the Government, appointed to sell lands and issue patents for the same.

For the error above noticed, the judgment is reversed and the cause remanded.