The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-04-10
Important to Aliens-Thcir Eligibility to
Hold Real Estate,

ago. at shers sale by James Englishbce. a BROTHER
of the plaintiff he died before he became entitled to
conveyance His widow administered. and tho sheriff
according to the statute conveyed 1t to her in trust for
heirs. 1hore heirs. and the administratrix
obtained patent from the Commissioners Of the Land
Oce granting the land to her under the act of 1888
INC plaintiff afterwards in ls47 obtained express
nc. Oh me Legislature giving him tho property and
"'"sS 'n's action TO recover possession
OPINION
There IL no foundation for the bill of exceptions
An act OF the Legislature, whether public private
Vahhot DC peachcd in court of law, upon the ground
that 1t was procured by of fraudulent represcn-
naae TO INC legislature, or by the concealment
rom that body OF material facts there was authori-
~ to enact It, and it has gone through the necessary
forms Of legislation it is binding upon courts of Justice
ana they must respect and carry its provisions II
mprovidcntly passed, the remedy is by an nppiica
tion to the Legislature for its repeal BY tho sherifs
deed tho administrative took naked estate in the
premises which upon the failure of heirs escheated to
the State. Where the title to land fails from defect Of
heirs 1t rests and escheats to the people in whom the
original and ultimate property is vested X. s. l. 81
ed 1t would not vest in the administrative upon the
failure Of heirs for the rule in Burgess Wheate Eden
III That the estate vests absolutely in tho trustee upon
the failure Of ces que trust has been recognised
in this country 10 Gin and John, 443 Leigh $751; 2 r.
s. .. But, she took tho legal estate in trust for
heirs her right to hold it would DO presumed until Of
nee found as every man Is supposed to have heirs until
the contrary is shown: wcnd. ae7 The contrary,
however, appears in this and takes away tho pre-
SUMPTION for it is found by the special verdict that
James Englishbee had children and that he left
were no heirs therefore, who could when the sheriff
conveyed to tho administrators, take benccally the
titic the land passed. by operation Of the
State Comyn. Dig Prerogativo, ID. 20. Kont 424
Francis Englishbec, being alien could not take
heir (uness by tho enabling operation of tho act Of
io4D An alien cannot acquire title to real property
by desccnt nor could tho plaintiff take by purchase
u no had been citizen when the sheriff conveyed to
tho administrators, he must have taken by descent
Title to land when distinguished from title by eschcat
or forfeiture derived by descent purchase In tho
former by operation of law in the latter by the
act or agreement Of tho party. He could not there
fore take purchaser. An alien resident NAV pur-
chase land or take 1t by devise, and hold against
m tha Stntn Strbin 30
State to divcst him But the plaintiff acquires no
right by purchase or devise. lie could only take by
descent the heir of his brother; and which he
was barred by his alienagc Mary Engishbee acu ured
no title by the patent We from ac-
CURING whether the commissioners had any authority
to issue it. or rather whether they had any authority
to release the land patent is to be avoided by scre
tacas, where it has been obtained by means Of some
fraudulent suggestion, or by the conceament of q
teral fact where it has issued by mistake or in g
norance Of some material fact In cases tho writ
of acias is tho appropriate and perhaps tho only
remedy 2R. S. 673 But if it is void upon its face or
has been granted without authority, it may be dsre
gsrded, as matter of law. 10 Johns. 80 econ, 2sl
The patent here void upon its face The of tho
Goth Of April, 1888, under which it issued act
apPropriating public property to private purposes,
and did not receive two-third vote Const. of
1921, art. 7. 9. 1t is not certified by the
presiding officer Of each house r. s. 162 So; and
release of eschcatcd lands under it, Is therefore void
The act delegates to tho Commissioners the right Of
appropriatng public property to private purposes,
which the Legislature exercise confer
without two-tird vote. 1t authorizes them to lease
to any citizen resident alien tho interest of the
State in any land of which the died seised
without making DEVISE and leaving no hoir capable
Of nhcriting The ultimate property in all lands
within the State IL in the people in virtue Of their
right Of sovereignty and the title to it, upon defect of
heirs vests at once in the State r. s., 81 Where
owner of land dies sced without heirs capable of
inhcrting or where alien dies, who has purchased
iand or taken it, by devise the land instantly and of
necessity without Office found vests in the State
the freehold cannot be kept, in allegiance. John
State being absolute the land is of COURSE public pro-
rerty; and cannot be appropriated given to ndi-
viduals for their private use and benefit, without
twothird vote 1t is undoubtedly competent for the
legislature, by amajorty vote, to abolish escheats or
pass law regulating tho succession to real property
But this IL not law OF that nature 1t il
abolishng eschcats declaring that partic
of persons may inherit who before under disa-
biity or giving up the right Of the State to all
which had escheatcd might thcreupon eschest, but
act authorizing the release of certain description
of eschcated land to private persons which is an ap
preparation of public property to private purposes
The reservation by the State of certain per ccntage
upon the value of the property given up, does not
There is no consideration. The State receives no
equivalent. The party obtaining the land gives up
nothing, nor incurs assumes any obligation in CON
sequence. The per ccnagc IL deducted from the value
OF the land and is not consideration paid by party
to the state 1t is gift or appropriations and nothing
else. As the premises in question escheated after
the passage of the act has been urged that though
1t might be void respects land which had cschcated
before its passage it would be good to land which
should escheat thereafter. But think act appro-
priatng to private purposes public property which the
State might acquire thereafter is fully within the
constitutional provision act appropriating pro-
pery actually in possession To anticipate the future
acquisitions of the State, is Objectionable
away what IT has already in possession By such pro-
spective legislation it would DO possible to eyade in
great degree the sautary restriction intended to
be imposed by the twothird vote But tho act were
constitutional the commissioners had no authority
under it to release this particular piece of property
They are to where the dies scsen
OF lands without making devise and leaving heirs
capable of nheriting; and James Englshbee never
saised of the premises in question. Sesen ancicnty
denoted the possession ofan estate not less than
Specification
the possession or absolute right to tho possession
law In fact when the party IL in possession In law
where he has the right, as in Of descent to the
possession So there may be equitable sescn in
yeyanccs in trust The trustee Is seiscd at law, and
has the legal estate and the cestu quo trust il deemed
seised in equity. Cruise 400 S. Seisen in either of
these would be sufficient for tho purpose of this
statute. But the peculiar interest which James En-
glshbec acquired purchaser at the sheriff SALE
any which that term has heretofore been
employed He was not in possession, had he abso
lutte right the possession 1t was contingent and not
absolute His right to conveyance might be defeated
by redemption at any time within the fifteen months In
the Of equitable seisen the possession postponed
until the termination of the trust estate but the right
to it is not the less fixed and absolute But in Eng
lishbee's it wholly uncertain That he should
become entitled to a conveyance depended upon con-
tingcnccs the happening of which were unknown and
unascertainablc at the time of his death 1t was a
mere legal possibility, interest altogether too
certain to constitute sciscn 1t is evident moreover
upon reference to the statute regulating the sale of
real property upon execution that the legislature did
not intend That the peculiar interest which they
ated in the purchaser before should be eou
yalent to scisen by the 63 the right tito of
judgment debtor IL not Invested until the expiration Of
the fifteen months he il therefore the party sesed
and not the purchaser After conveyance, tho shers
grantee is vested with the legal estate from the time
sale to enable him to bring waste which would const-
ute sesen but the grantee here is the administrative
She. for that purpose DO deemed sesed from the
time Of sale but not the purchaser by the S66 1t is
provided that the real estate after to tho
representatives Of deceased purchaser may DO sold
for the payment Of his debts in the manner as
tbQ frame Of
the statute had designed that the purchaser should
scscd before conveyance, that tho conveyance of
the sherH should have retroactive effect, so rs to
render the purchaser sescd from the time Of SALE this
special provision was unnecessary tho land might be
any lands for the payment Of debts of which tesaor
or interstate may have died scscd. The plaintiff has
acquired absolute title by tho act Of 1s47 IL re-
leases to him all tho rights. titlc and interest of
the State in the premises il invests him with all
the power title rights and actions which tho State DOS
before The Of the act to