Case 5 — Proceeding to Escheat Land

Sept. 21.

#### Commonwealth v. Newcomb & Others.

APPEAL FROM HENDERSON CIRCUIT COURT.

Judgment for Defendants and Plaintiff Appeals.

Affirmed.

Repeal of Statute — Right of Aliens to Hold Property.

Held: 1. Act Feb., 1874, providing that an alien shall have the same right to hold property in Kentucky that is given to the citizens of Kentucky by the laws of the government of which such alien is a subject, was repealed by its omission from the chapter relating to the rights of aliens in the revision of the statute'laws of the State after the adoption of the present Constitution.

2. The repeal did not operate retrospectively, so as to unsettle existing titles, or to confiscate property held under the statute.

3. The statute was not unconstitutional.

4. A naturalized citizen of Canada, being a British subject; was entitled to the benefit of the statute by virtue of an act of the English Parliament giving aliens the same right to hold property that natural-born British subjects have.

WILLIAM R. MARRS, Attorney for appellant.

1 Escheator’s Right and Duty Maintains Action. Ky. Stats. Chap. 44; Rev. Stat. Chap. 34; Gen. Stat. Chap. 3'6; Especially Art. 4, sec. 2. *19Legal Status of Appellee. Ky. Stats. Chap. 76, Art. 1, secs. 1 *&*2;

2 Blackstone Com., 249, 274, 293; 2 Kent, Com., 61; Hunt v. "Warnicke, Hardin 62; Elmendorf v. Carmic'neal, 3 Litt, 474; Dudley v. Grayson, 6 Mon., 260; Pry y. Smith 2 Dana 40; White v. Id.,2 Met., 189; Ky. Stats., 335.

Plea of Limitation y. Commonwealth. Gen. Stats. Chap. 14, Art. 3, sec. 4; Ky. Stats., sec. 337; Board v. Jolly, 5 Bush, 86; Ky. Stats., sec. 335.

Act of Peby-23, 1874, Viewed as Valid. Gen. Stats. Chap. 14 Art. 3, sees. 1, 33 & 34 Vic, Contained in Stipulation in Record; Acts of Gen. Assembly 1891-2-3, Page 54; Cooley Const. Lim., 340, 341, 342, 644, Note 1, 471-2; Christ Church, &c., v. Phila, &c., 24 How. 300; East Saginaw y. East Saginaw &c., 13 Wall 373; Crane Y. Reeder 21 Mich. 24, S. C. 4 Am. Rep., 430; Wunderle v. Id. •44 Ills., 58; 1 Greenleaf sec. 43, note c.

Act of Peby. 23, 1874, unconstitutional: Const. 1850, Art. 2 sec. 34; Art. 13 sec. 1; Rey. Stats., Chap. 34, Chap. 92; 33 & 34 .Vic; U. S. v. Fisher Cranch, 386; Am. & Eng. Ency. Law pp. 298 to 304.

Escheat, No .Seizure. Ky. 'Stats., Chap. 76, *Swpra;*Blackstone *Supra;*Kent *Supra,*& Wunderle y. Id. *Supra.*

YEAMAN *&*LOCKETT and T. L. EDELEN, Attorneys for appellee.

POINTS AND CITATIONS.

1. There was no “inquest of office found:” Revised and General Statutes, Title Escheats, Article 4, Kentucky Statutes section 1611:

2. The act of 1874 (Acts 1873-74, chapter' 594) became a part of defendant’s, now appellee’s, title; Walker v. Whitehead, 16 Wallace 314; Grubbs v. Harris," 1 Bibb, 567; Kibbey v. Jones, 7 Bush, 243; Hanrick v. Hanrick, 54 Texas, 101; Hanrick v. Patrick, 119 U. S., 156.

3. Consequently, the Legislature could not repeal that act and thereby devest titles which had accrued under it; citations under last point, and Constitution of the United States; Commonwealth v. Railroads, 95 Ky., 60; 12 Bush, 378; 96 Ky., 249; 2 Wal., 450.

4. Thé repeal of the act of 1874 operated — if there ever was a repeal —prospectively; Lawrence v. City of Louisville, 96 Ky., 595; L. & N. R. R. Co. v. Sharp, 91 Ky., 411; C. *& O.*R. R. Co. v. Judge ' Washington Co. Ct„ 10 Bush, 564; Watts v. Com., 78 Ky., 329.

OPINION OF THE COURT BY

JUDGE HOBSON

Affirming.

This proceeding was instituted in the court below for the purpose of escheating to the State the iand owned *20by appellee in Henderson county on tbe ground that she is an alien. It is admitted that she is a British subject. In 1870 the English Parliament passed an act to the effect that “real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in' all respects as by a natural-born British -subject.”' In February, 1874, the Kentucky Legislature passed an act providing that “an alien shall have the same right to recover, inherit, hold and' pass by descent, devise or otherwise, real or personal property in this State that is given to the citizens of Kentucky by the laws of the government of which such alien is or was a citizen or subject.” 'Gen. St. p. 247. A part of the property in contest was- conveyed to appellee a few weeks before this act was1 passed, and the rest thereafter, and while it was in force. In the revision of the statute laws of the State after the adoption of the new Constitution this act was omitted!, and so was repealed by the act of April 29, 1992, which now constitutes chapter 19, Kentucky Statutes. But, though the act has been repealed in this- way, the repeal has no retrospective effect, ■and does not operate to confiscate property acquired or held under it by authority of the State. We do not think it could have been intended by the Legislature, in simply omitting this act in the revision, to unsettle exis ting titles, waiving the question whether the Legislature had -such power if it desired to do this. Appellee’s property was not, therefore, liable to escheat.

We see no valid objections to the act on constitutional ground's. It simply gives aliens the same right to hold real property as citizens of Kentucky enjoy in all cases where, by the laws of the government of which such aliens are subjects, -a like right is given to the citizeDS of Ken*21tucky. In other words, English subjects are put-on the same footing as citizens of Kentucky as to holding real estate, in case citizens of Kentucky are by the laws of England put on same footing as British subjects in this respect.

The fact that appellee’s husband, E. B. Newcomb, was naturalized in the Dominion of Canada is immaterial. He was a British subject, and so is appellee. Being a British subject, she was entitled to the benefit of the act above quoted, as by the act. of Parliament citizens of Kentucky were put on the same plane in regard to holding real estate as British subjects.

The conclusion we have reached makes it unnecessary for us to determine any of the other interesting questions discussed. The court below properly dismissed the proceeding. Judgment affirmed. .