Denio, Ch. J.
It is not denied that Hugh Munro the elder, to whom the premises in question were conveyed in 1774, lived and died a subject of the King of Great Britain. He was born in Scotland, and, at an early day, came to reside in the colony of Hew York, and lived near Fort Miller, within the present county of Saratoga, when he received the conveyance of these lands. Shortly afterwards, and about a year before the commencement of the revolutionary war, he went to Montreal, and always afterwards resided in Canada, until his death, in 1802. He was consequently an alien, as regards this state, from the time of the establishment of an independent government here until, his death.
I have no doubt that the second Hugh Munro, the son of the former, was also an alien, though that position is questioned by the plaintiff’s counsel. According to the account which he gives of himself, in his deposition, he was born in Amboy, Hew Jersey, in about 1766; went with his father’s family to the neighborhood of Fort Miller, and was left there with his mother and the remainder of the family when his father went to Canada. At the commencement of the war his mother went with her family, consisting of this son and four other young children, to the'city of Hew York, where, and on Long Island, then also in the possession of the British army, they or the survivors of them remained until the close of the war. The mother and all the children, except this son, appear to have died during the war. He was with an aunt on Long Island at the peace, and was then sent for by
his father to come
to
him in Canada, whither he accordingly went; and he has ever since resided in Canada, in the same town in which his father lived, whose property there he inherited. He states the time when he went to Canada ás a year or two after the close of the revolutionary war, but he says, likewise, that he was then sixteen or seventeen years old. There is' a -lack of precision about this date, for, upon his own statement of his age, he must have been fully seventeen at the treaty'of peace, in 1783. But I do not think it material
'to
the question "of his alienage, whether he remained in this state a short time after the treaty or not. ' He was a minor, subject to and under the control of his father, whose power over him- he acknowledged, and whose directions as to the disposition of his person he obeyed. So far as an election between the old and the new government enters into the question of his alienage, it was determined in favor of the former by the party authorized to act upon that question. This Hugh Munro, equally with his father, was born a British subject. He did not become a citizen of Hew York by force of the declaration of independence, or the act of the convention of July 16, 1776, which affirmed that all persons abiding within the state, and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of the state; because, independently of his minority, he withdrew or was withdrawn from the place where these laws practically operated, and was placed under the protec-' tion of the British government, in a locality possessed by its armies and wholly under its control. Hor did he become a citizen of this state by force of any. election to abide therein after the British forces were withdrawn after the conclusion of the peace, for he was incapable from his non-age of making an _ actual election, and did not attempt to do so ; and if he did remain here for a short time after the treaty, which is not certain, no election can be inferred from that circumstance, on account of. the same disability; especially as we have seen that he conformed to the directions of his father,
an acknowledged British subject, by repairing to a British colony as soon as those directions were signified to him. In
McIlvaine
v.
Coxe’s Lessee,
(4 Cranch, 209,) in which the citizenship of one David Cox was in question, it was held that he became a- citizen of Hew Jersey by voluntarily remaining in that state, and .under the protection of its laws, after the declaration of independence and after the legislature had passed an act declaring such, persons to be members of and in allegiance to the new government. There was no question of disability, on account of infancy, in the case. The effect of going to reside within the lines of the British army, and the power of a father to elect for his minor children upon the question of citizenship, on the severance of this state from the British dominions, as I have stated these principles, was affirmed by the Supreme Court of the United States in
Inglis
v.
The Trustees of The Sailors’ Snug Harbor,
(3 Peters, 99.)
But assuming it to be shown that both father and son were aliens when the former died, in 1802, the question arises whether the latter could or could not, under the circumstances of the case, inherit from the former. Hugh Munro senior became seised of this estate while a British subject, before the revolution, and was never attainted of treason, but continued so seised until after the treaty of peace of 1783, and the subsequent treaty of commerce of 1794. By the treaty of 1783 future confiscations were forbidden, and no person was to suffer loss on account of, the part he had taken in the contest, (§ vi;) and by the treaty of commerce more ample protection was afforded to individuals of the respective nations having titles to land, by article ix, which is in the following words: “It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to- the nature and tenor of their respective estates and titles therein; and may sell, grant or devise the same to
whom they please, in like manner as if they were natives; and that neither they
nor their heirs or- assigns
shall, so far as may respect the said lands and the legal remedies incident thereto,'he regarded as aliens.” The right of the elder Munro kr enjoy these lands during his lifetime, to alien them or to transmit them by. descent to a citizen of the United States, is not questioned. Such rights are within the plain language of the last mentioned treaty, and they have been affirmed in a great number of adjudicated cases. Indeed it is probable that apart from the treaty stipulations, the fact of the inde- . pendence of the former colonies would not have divested the titles to land which individuals in either of the separated nations held within the territories of the other, according to the dictum in
Calvin’s case,
(7 Coke, 27, b.) But the question before us is whether the second Hugh Munro, being also an alien as has been shown, could inherit the lands held by his father, under the protection of the treaties. The defendant could maintain that the spirit of the treaty stipula-" tions would be satisfied by conferring upon persons in the situation of Hugh Munro senior only the capacities of a citizen of the United States. Possessing that character, and with no oth,er privilege, he could convey the land to any person, whether he were a .citizen or an alien, with the qualification that, in the latter case, it might be taken from the grantee by a proceeding in behalf of the
state;
and he could transmit by descent to his heirs being citizens, but not to alien heirs. But the exigency of the case required something more than this. Persons holding titles to land in what had become, as to them, a foreign jurisdiction, were no doubt very numerous, and their descendants and kindred, and those also with whom it wquld be convenient for them to have dealings respecting their lands, would be likely to be of their own nation, and" consequently aliens to the jurisdiction in which the lands were situated. The devolutions of title upon intestacy would be constantly occurring, so that the protection of the title of the present possessor simply would not, in many
cases, prevent the loss of the estate, which it was the purpose of the treaties to guard against. These considerations, I ■presume, led to the’insertion of the concluding words of the article in the treaty of 1794 referred to, namely, that the
heirs and assigns
of the persons holding lands in the foreign nation should, not he regarded as aliens as it respected such lands.. It is impossible to give this language any effect without holding, at least, that persons in the position of the immediate heirs then in life, of the individual holding the existing title, were relieved from the disability of alienage, so far as it regarded such lands. Such a construction would be sufficient for the purposes of the plaintiff in this case. The authorities certainly go to that extent, if they do not carry the rule considerably further. The broadest construction would be, that the lands embraced within the purview of the ninth article of the treaty of commerce were indefinitely and perpetually heritable and alienable, to and among aliens of the' two countries, in derogation of the laws respecting alien-age which were or should be established therein, until they should come to be held by citizens, after which no one would deny that they would lose the peculiar attribute impressed upon them by the treaty.
In
Harden
v.
Fisher,
(1 Wheat. 300,) the plaintiffs, British aliens, claimed to recover in ejectment as heirs of one Fisher, a British subject who died in 1798. He was shown to have been seised of the premises in 1777, but the special verdict upon which the case was heard did no| find that his seisin continued down to the time of the treaty, and on that formal ground the judgment for the plaintiffs was reversed. The opinion of the court by Chief Justice Marshall, and the order for judgment, both assume that the treaty would have enabled the alien heirs to inherit if their ancestor was seised when it was signed.
In the case of
Orr
v.
Hodgson,
(4 Wheat. 453,)' it appeared that the title to the lands in controversy was vested in one Lucy Paradise, a British subject, at the date of both
treaties. She died in 1814, leaving two grandchildren her only descendants, born and always residing in Venice, and consequently Austrian subjects, and two nieces, natural born citizens of the United States; and the general question was whether the land descended to these nieces, or to the grandchildren. The court, after establishing that the title' of Mrs. Paradise was protected by the treaties, and laying down the rule that the grandchildren, if incapable of taking by descent, on account of their alienage, would not impede the descent to the nieces, proceeded to consider the effect of the treaties upon the succession. After quoting the 9th section of the treaty of 1794, the opinion was expressed that persons who were aliens to both countries—the United States and Great Britain—could not take by inheritance under that section. Mo doubt seems .to have been entertained that an heir who was an alien to the country in which the lands were situated could have inherited from an alien ancestor, if he was a citizen of one of the nations which were parties to the treaty. “It can not be presumed,” Mr. Justice Story said, “that the treaty stipulated for benefits to any persons who were aliens to both governments.”
In
Shanks
v.
Dupont,
(3 Peters, 242,) the question was as to the right to a sum of money paid into court in a suit in partition, the proceeds of a sale of lands in South Carolina. The original' defendants were British aliens, and claimed to have inherited a moiety of the lands which had been sold under the partition proceedings from their mother, a certain Ann Shanks. Mrs. Shanks was born in South Carolina before the revolution, married a British officer during the war, and went with him to -England in 1782, where she died subsequently to the treaty of 1794. The only question discussed' in the case was whether, under the circumstances appearing, she was "an American citizen or a British subject at the time of the signing of the treaty, it being taken for granted that if she was an alien to this country the inheritance of her alien children was guarantied by the treaty, but that if she
were an American citizen she could not transmit by descent to her alien children. It was decided that she was to be ‘ regarded as a British subject at the date of the treaty, and at her death, and consequently that the defendants had inherited the land notwithstanding their alienage, and were entitled to the fund in dispute. The case affirmed, very distinctly', the position that a British alien holding land within the purview of the treaty of 1794 possessed a capacity to transmit by descent to alien heirs, which an American citizen could not lay claim to. The point seemed too clear for discussion, and hence the only question considered by the judges was, as I have mentioned, whether the ancestor were a citizen or an alien.
The principle under consideration was applied to the descent of land situated in England, the title to which was held by an American citizen at the time of the treaty, in
Sutton
v. Sutton, (1 Russ.
&
M. 663.) In a bill for the specific performance of a contract for the sale of lands situated in the city of London, it appeared that one Samuel Strudwick, a citizen of the United States, conveyed them to a person under whom the vendor derived title, in the year 1819. This Strudwick claimed to have inherited the premises from his father, W. F. Strudwick, another American citizen, who died intestate in 1810,.and the latter derived title by devise from his father, Samuel Strudwick the elder, who was born in ¡North Carolina before the revolution, adhered to the United States and was consequently an American citizen, and died seised of the premises in 1794. The English courts consider the treaty to have taken effect at the date of the exchange of the ratifications, October 28, 1795, that being the date mentioned in the act of parliament ratifying the 9 th article of tie treaty. It will be seen that at that time W. F. Strudwick was seised of the premises. He being an alien was, by the common law of England, incapacitated on account of his alienage to transmit a title by descent, and his son was unable to inherit lands in England
for the'same reason; and moreover, that son was unable to convey a title by deed which would not he subject to forfeiture to the crown, upon office found. Hence the title was fatally defective, unless it was' made good by the treaty. The principal question discussed was whether the treaty was not abrogated by the war of 1812; but the counsel for the vendee urged the same argument which is insisted on as to lands in the United States, by the counsel for the defendant here, viz. that the consequences of the construction contended for would he that all the lands *hich at the date mentioned belonged to Americans “are taken forever out of the operation of the general law of England, and may in all time to come be transmitted by aliens by descent, devise or conveyance.” The counsel for the vendor accepted this as the result of his construction. “ The effect of it is,” he said, “to exclude, and to exclude forever, the principle of alienage as to certain persons and certain lands.” The master of the rolls held the title good. He said the privilege was given not only to the alien possessors of the lands, hut to their heirs and assigns; that the treaty in this respect was permanent, and not affected by the war of 1812. It thus appears that the superior courts of both nations have concurred in the doctrine upon which' the plaintiff relies.
The principle that alien heirs may take by inheritance from . alien ancestors who held lands under the protection of the treaty, has been repeatedly recognized in the courts of this state. In
Jackson
v.
Wright,
(4 John. 75,) the plaintiff showed title in one of his lessors by an award of the Onondaga commissioners, in 1800, which was not dissented from; hut it was shown that the legal title was formerly in one Nelson, a British subject, who died seised in 1798, in New York, without issue; hut he left a brother and three sisters his only heirs,"who were aliens. One of the sisters was a married woman, and was-within the saving of the act creating the board of Onondaga commissionérs, and was not therefore prejudiced by a failure to dissent. The others, not
being under any disability, were held to have lost their title by not dissenting from the award. It was held that they were all capable of taking,, notwithstanding their alienage, by force of the treaty of 1794, Nelson being seised when the treaty was made, but that all except the feme covert had lost their title by not dissenting. Van Ness, J., in giving the opinion of the court, said that it was the intention of-the contracting parties to the treaty that the citizens and subjects of each should be quieted in the enjoyment of their estates, “ in the same manner as if they
and their heirs
had been native citizens.” The plaintiff’s recovery was therefore so limited as to exclude the share of the sister .whose title was saved on account of her coverture. In
Orser
v.
Hoag,
(3 Hill, 79,) the principle referred to was assumed to be well established, but the title of the alien heir did not prevail because the ancestor died before the treaty was signed, and they were not therefore within its influence.
There is a class of cases, very analogous in principle, which would go far to establish the plaintiff’s construction of the treaty, if there were. no direct authorities. Acts of' the legislature authorize aliens to take and hold real estate, and public grants of land to aliens, have been repeatedly held to be descendible to alien heirs, contrary to the general rules of law.
(Goodell
v.
Jackson,
20 John. 707;
Jackson
v.
Etz,
5 Cowen, 314;
Jackson
v.
Lervey,
Id. 397;
Duke of Cumberland
v.
Graves,
3 Seld. 305.)
It is contended that the plaintiff is himself, an alien. He was born in this state of non-resident alien parents, his mother being here simply, it would appear, for the purpose of being confined. He now resides in this state, and is
prima facie
a citizen; but whether he is a citizen or not is not material, for he does not derive his title by inheritance, or by an act of law, but by purchase, he having acquired the right of the party to whom the premises were sold on execution, in the manner authorized by the statute; and it is very famil
iar law that an alien may take by purchase and hold against all parties except the state, claiming under an inquest of office.
I have examined with attention the voluminous depositions read upon the trial, upon the question of adverse possession. The material facts are substantially as follows : Subdivision lot Ho. 14 on the map of the Gansevoort estate, the north half of which was conveyed to the defendant in 1848, contains about eighty-seven acres of land, and embraces parts of the original or great lots 1, 2 and 3 of the 20th allotment of the Kayaderosseras patent. Ho. 2 lies directly north of Ho. 3, and the subdivision lot Ho. 14 is on both sides of the division line, about 47 acres of it being on lot Ho. 2. The complaint is for the north half of Ho. 14, but only about sixteen acres of that north half is on great lot Ho. 2.
It is not pretended that any part of this lot Ho. 14 was cleared or cultivated prior to about 1848, when the defendant received his conveyance, about seven years before the commencement of this suit. If there was a prior possession, adverse to the plaintiff’s title, it was a constructive one, arising out of the facts to be next mentioned.
General Peter Gansevoort, jun. (the hero of Fort Stanwix) acquired his title to great lot Ho. 2 in 1797, when he received a deed in fee from Anthony Yan Dam, by Gerard Walton his attorney, for the whole lot of about 800 acres, except a small part which had been previously sold. That deed was given after the one under which the plaintiff makes title, and moreover, the power of attorney to' Walton was not proved. I shall assume, however, as I am satisfied the law is, that it afforded sufficient color of title on which to found an adverse possession if there was a good constructive occupation. Gen. Gansevoort also claimed to own great lot 3, which is situated, as I have mentioned, north of and adjoining lot Ho. 2, and some adjacent lands, the whole embracing 1500 or 1600 acres, which was together called General Gansevoort’s tract, or Gansevoort’s farm. The evidence is very satisfactory to show that the general' and his devisees
have claimed title to this tract from about 1788 down to the time it was sold by the executors of his widow, about 1841; and during that period they appear to have rtegularly paid the taxes upon it. Prior to 1790 he built a log house upon the tract, cleared a portion of it, and subsequently erected mills, a framed house and other buildings. This settlement has been continued, and the quantity of the cleared land gradually extended. As early as 1800, 200 acres were cleared, and about 300 acres had been cleared by 1812, and about 60 acres more by the year 1830. About two thirds of this clearing was on No. 3, and one third on No.. 2. This cleared parcel was occupied by and under the general and his successors in the title, and by his and their lessees and tenants, under a claim of title to the whole tract, down to the sale to Sutfin and others, and from thence to this time. During all that period the claim of title to the whole tract has been constant and uninterrupted, and the uncleared land has, for a considerable part of the time, been used extensively for cutting timber trees to be drawn to and manufactured into lumber at his mills and elsewhere, and to be taken thence to market, and the fencing timber for the cleared parcel and for fuel consumed on that parceland some fire wood was also sent to Albany. The timber and wood was taken indiscriminately from the parts of the tract where it could be most conveniently got at.. There was a survey and map made about 1803, the surveyor running around the whole tract, and placing monuments where necessary. The heirs or devisees of General Gansevoort caused the outlines of the tract to be again surveyed in 1833, and it was subsequently divided into 17 lots, of which the above mentioned No. 14 is one, and a map was made and filed in the clerk’s office" of Sara-toga county. The precise point is, whether so large a tract of forest land can be said to have been possessed and occupied, in consequence of the limited amount of cultivated land, under the circumstances, here shown. These constructive possessions have always presented difficult questions,
and the legislature, in the revision of 1830, undertook to lay down principles which should govern them,
(2
E. S. 294," §§ 9, 10. Code, §§ 82, 83.) It is declared, in the first place, that where title is claimed exclusively under- a written conveyance and there has been a continued occupation of the premises included in the conveyance, under such claim, for twenty years, “the premises so included shall be deemed to have been held adversely; except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed the possession of any othcH lot in the same tract.” (§ 9.) The next section states the rule in somewhat different" terms. An uninclosed parcel of land is to be considered possessed and occupied, where it has been used for the- supply of fuel or fencing timber, for the purpose of husbandry or the ordinary use of the occupant. (Subd. 3) This is foreign to the present purpose, as it relates to parcels of which there is no actual occupancy except the taking of fuel and fencing timber. So large a tract of forest would not be within the intendment of this provision. Then it is enacted that “where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.” (Subd. 4.) I do not understand that there was any division of the original lots into smaller ones until after 1833. "When, therefore, Gansevoort, under his deed from Anthony Van Dam, entered upon great lot No. 2 which was included in that deed, and made the extensive, valuable and permanent improvements which I have mentioned, claiming title under that conveyance to the whole of that lot, there being no subordinate allotment which would limit the effect of that entry and possession, it seems to me that by force of the ninth section the whole of the premises included in that deed, namely, the whole of great lot No. 2, are to be deemed to have been held adversely to the plaintiff's
title. This conclusion is not affected by the fourth subdivision of the next section just referred to. Dismissing the idea that this considerable tract of forest' land was a known farm, which perhaps can not be affirmed, though it seems to have been sometimes so called, the improvements were in part upon this great lot No. 2, which, prior to 1833, had not been subdivided. That part of the improvements was therefore upon a single lot, namely, the lot No. 2, and by the language of the subdivision the whole lot is to be deemed to have been occupied for the same length of time as the part improved and cultivated. There is a reference in the statute to the course and custom of the adjoining country, and that was evidence of a practice prevailing in that region to some extent, not to inclose considerable tracts of wood land connected with improved lands. We should know, without that evidence, that in the early settlement of lands hitherto in forest, the exterior lines of a person’s premises were frequently left unfenced.
The result of these observations is, that as early as 1833, the plaintiff’s title was barred by an adverse possession for a much longer period than the statute requires. That possession has never been abandoned. After the division of the great lot into smaller ones, and the compiling of the map, the premises in question were sold by the executors of Mrs. G-ansevoort to Sutfin and others, and subsequently by them to the'defendant, and their grantees have always exercised notorious acts of ownership, and the defendant has erected a dwelling and resides upon the premises. If the revised statutes were considered as introducing a new rule applicable only to future cases, it might be necessary to inquire how the law stood before. But I am of opinion that the' provisions were declaratory of the existing law. The revisors sought to introduce a new qualification by limiting the effect of an improvement upon a large lot to two hundred acres of the contiguous land, but the suggestion was not adopted.
I am therefore in favor of reversing the judgment of the
Supreme Court and awarding a new trial, on the ground that the evidence tended to show an adverse possession under the Gansevoort title, and that it should have been submitted to the jury, under proper instructions.
Emott, J. dissented, in respect to the right of Hugh Munro the younger to inherit from his father.
Rosekrans and Selden, JJ. having been counsel, ex- ■ pressed no opinion.
All the other judges concurring,
Judgment reversed.