
    
      Michael Keenan and others vs. Sarah Keenan and others.
    
    In trespass to try title, a plat made from a survey, without notice to the opposite side, may be given in evidence, upon the question of location or identity — the surveyor fortifying the plat by his oath.
    S. K., a naturalized citizen, died intestate, leaving a widow, who was a resident of this State and an alien : he left also a brother, who was a naturalized oitizen: — Held, as to the real estate of S. K., that his brother was his sole distributee — the widow being entitled to no share.
    The widow of S. K., after his death, made application and became naturalized : — Held, that her subsequent naturalization did not operate retro-actively, so as to divest the brother, and vest her with a share of the land.
    The Act of 1807 (5 Stat. 574) has no application to the case; and the widow cannot claim under the Act of 1828 (6 Stat. 363) — the intestate, S. K., having left an heir capable of taking under the statute of distributions.()
    
      Before Whitner, J., at Chester, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was trespass to try titles. The plaintiffs claimed as heirs at law of Stephen Keenan, deceased. They were the children of Samuel Keenan, deceased, who claimed to have been the brother of Stephen Keenan, Samuel and Stephen being the children of old George Keenan; all of whom had been born in Ireland.
    1! Old George Keenan was naturalized 24th October, 1832.
    Samuel Keenan “ “ 24th October, 1832.
    Stephen Keenan “ “ 5th April, 1838.
    “ It was in proof that old George Keenan had other children born in Ireland, to wit: Jeanie, a daughter, who had been married to Wilson Rainey, and others who had died there; and also one Ellinor Keenan, who had married a man by the name of Johnston. She was born in America. There was no evidence as to the time or place of Samuel Keenan’s marriage, or of the birth-place of his children ; nor was any question raised on the Circuit as to their being entitled to any interest that may have vested in their father, Samuel Keenan, who had survived both old George Keenan and Stephen Keenan.
    i; George Keenan, and his reputed wife, Mary Keenan, lived together in Ireland as man and wife, where they were reported to have been married more than fifty years ago; had removed to this country at least as far back as 1830, and so lived till the death of old George, in 1837, being survived by his widow, Mary Keenan, who succeeded to his personal estates. On the cross-examination of an old Irish gentleman by the name of John Kearney, who had known old George and his wife, Mary, and the children, Samuel, Stephen and Jeanie, in Ireland, it was proved that George, before his marriage with Mary, had lived with a woman, Nancy Curry, by whom he had two children, one of them a son, perhaps still living in Ireland, the other having died in infancy — that they were never married — that the marriage of George and Mary was said to be a Buckle Beggar’s marriage — that this sort of marriage was common amongst the poorer classes, and always in private, not being celebrated in the usual form, by license and publication of the banns. He had heard one old woman say in Ireland that they had all been sworn to keep it secret, except, perhaps, Mary, the bride.
    “ The lands in question belonged to Stephen Keenan, in his lifetime; and the great question in the case was, whether the defendant, Sarah Keenan, the widow of Stephen Keenan, was not also entitled, under the laws of the State, to an interest in her deceased husband’s real estate. She was a native of Ireland — left that country after she had attained full age, with her widowed mother, and had been in this country some fourteen years, and was married'to Stephen Keenan in 1839, 1840, or 1841, witnesses not fixing date with certainty. Her husband, Stephen Keenan, died 3d April, 1847, intestate, and Sarah Keenan, with another, had administered on his estate, and applied to Equity for a sale of these lands, to pay debts, &c. On the intervention of Samuel Keenan, who had been made a party, as next of kin, a conditional order was made for sale, unless Samuel Keenan paid a sum sufficient to discharge the debts. This being done, there was no sale, and this suit was brought against Sarah Keenan and her tenants, she having refused to permit Samuel Keenan to enter the said lands. There seemed to be no serious question about the locus in quo, as the record in this case described the same lands referred to in the proceedings in Equity, in which Sarah Keenan was complainant, and Samuel Keenan, the ancestor of plaintiffs, was defendant. Mr. Adam Walker, a surveyor, had made a survey, at some time, of these lands, and I permitted the plaintiffs to introduce this witness by way of locating the lands and identifying them as the same tract; his plat of re-survey being referred to and adduced, though he could not say that this defendant, Sarah Keenan, had any knowledge of the fact 'of his re-survey. On the part of the defence, a declaration was announced to have been made by Sarah Keenan, of her intention to become a citizen of the United States, 3d November, 1849, and a certificate was adduced of that kind. Again, a declaration of her intention to apply for naturalization, 4th December, 1847, and her certificate of citizenship, 1st November, 1853. Her notice was recorded in the Secretary of State’s office, 4th December, 1847. The counsel also proved the handwriting of Stephen Keenan to certain papers, said to be informal wills, of certain personalty; and that defendant was industrious and economical.
    “ From a hasty review of the different Acts of Congress, and of the State, on the subject of aliens, I could not perceive that any provisions were made beneficial to the defendant, Sarah Keenan. And although it was also urged that the action of trespass could not be maintained against an alien in possession until office found, I ruled otherwise in the case made. The jury returned a verdict for the plaintiffs for the land in dispute, and five dollars damages.”
    The defendants appealed, and now moved this Court for a new trial, on the grounds :
    1. Because his Honor erred in admitting in evidence in this case, the plat of re-survey made by Adam Walker, a Surveyor, which he said had been made in the absence of and without any notice to the defendants; and it is therefore respectfully submitted that that survey was not admissible in evidence in this case.
    2. Because it appeared from the evidence in this case, that all the children of Samuel Keenan, the ancestor of plaintiffs, except one, were born in Ireland, and Samuel Keenan alone, as appeared by the proof, had been naturalized; therefore as they were all aliens but one, the others could not maintain this suit. See the evidence of John Kearney, Sen., a witness for defendants.
    3. Because Samuel Keenan was not a legal heir at law of Stephen Keenan, the husband of the defendant, Sarah Keenan, as it was fully proved that George Keenan, and his wife, Mary Keenan, as she was called, had not been lawfully married in Ireland. This was proved by John Kearney, Sen., and the facts stated by him showed that the marriage in Ireland was illegal — still his Honor said in his charge to the jury, that he did not know whether that marriage was valid or not, as the laws of Ireland had not been proved before him; whereas, it is submitted, the Judges of this State are presumed judicially to know the laws of the Kingdom of Great Britain, of which Ireland is a part.
    4. Because his Honor erred, as the defendants suppose, in his charge to the jury, in saying to them that the defendant, Sarah Keenan, not having been naturalized or made a denizen of this Slate, at the death of her husband, Stephen Keenan, could not take or hold lands in this State, though she is now and had been made a denizen and naturalized as soon as the forms of law would permit, after the death of her husband, and being a resident in this State since the death of her husband, Stephen Keenan. It is therefore submitted that she can take as distrib-utee of her husband, under the Acts of the Legislature of this State, especially the Acts of 1807 and 1828, and several Acts of Congress as to aliens.
    5. Because, by law, the defendant, Sarah Keenan, under the case, made by the evidence in the case, can take and hold under her husband.
    6. Because an action of trespass could not be sustained against the defendant, from the case made by the evidence.
    7. Because the verdict is contrary to law and evidence, and should be set aside, and a new trial granted, as the defendant, Sarah Keenan, under an equitable construction, and the spirit of the Acts of the Legislature of this State, and the Acts of Congress as to aliens, is clearly enabled to take and hold land of her husband.
    Eaves, Thomson, for appellants.
    McAliley, McClure, contra.
    
      
      
        (a) Vide Descottes and O’ Driscoll vs. Talvande, 2 McM. 300.
    
   The opinion of the Court was delivered by

Munro, J.

On the defendant’s first ground of appeal it may be sufficient to remark, that the ruling of the Circuit Judge, in permitting the re-survey plat, referred to, to be given in evidence, was in strict accordance with all our adjudications on that subject, commencing with Frean ads. Cruikskanks, (3 McCord, 84,) in which it was held, “ That the Act which au-thorises a survey in trespass to try title is not imperative, and was never designed to be used when unnecessary; but that either party may resort to it, when he has no other sufficient evidence, by which to identify the land —and as to the argument, of its operating as a surprise to the adverse party, drawn from a want of notice, it is a sufficient answer to it to say, 'that the adverse party has only to apply for a rule of survey himself under an order of Court, and the objection is at once obviated.

The only other question necessary to be considered, is that which arises under the fourth ground of appeal, namely, the right of the defendant, Sarah Keenan, to a distributive share of the real estate of her deceased husband, notwithstanding she was an alien at the time of his death. It appears, from the report of the Circuit Judge, that the intestate, Stephen Keenan, under whom both the plaintiffs and defendants claim title, was a native of Ireland ; that he immigrated to this country in the early part of the present century ; that in the year 1838, he became a citizen of the United States, and that, being the owner of the land in dispute, he departed this life in the year 1847, intestate, leaving surviving him Sarah Keenan, his widow, and a brother, named Samuel Keenan, who was also a native of Ireland, but had been naturalized in the year 1832 ; that the said Samuel hath also recently departed this life, leaving the plaintiffs, who are his children, surviving him, and who claim to be the sole distributees of the real estate of the intestate, Stephen Keenan. It further appears, that the defendant, Sarah Keenan, is, likewise, a native of Ireland ; that she came to this country after she had arrived at full age ; that sometime between the years 1839 and 1841, she intermarried with the intestate, but at the time of his death was still an alien; that on the 3rd of November, 1847, she announced her intention to become a citizen of the United States, and her certificate of citizenship bears date 1st November, 1853.

Whilst it was conceded in the argument, that, although the defendant’s alienage at the time of her husband’s decease, incapacitated her from taking any portion of his real estate, it was however contended, that the removal of that disability, by hex-subsequent naturalization, in effect operated as a complete restoration of her right to take at that period.

This position, it will be seen, is neither sustained by principle, nor judicial adjudication, and for the very obvious reason, that if our naturalization laws were to have the retro-active effect, which is contended for, the inevitable consequence would be, not merely to vest a title in one claiming under them, but to divest a title out of another upon whom the law had already cast the inheritance. In Fish vs. Klein, (2 Merv. 431,) it was held, that an alien, who was a devisee in trust to sell, and who joined in the sale and conveyance, did not give a good title ; and his subsequent naturalization by Act of Parliament, did not operate to confirm the title.

In Vaux vs. Nesbit, (1 McC. Ch. 352,) it is said, “ The words of our statutes for naturalizing aliens are evidently prospective.” And again, Chancellor DeSaussure remarks, “Naturalizationis not restrospective. I apprehend this would be too full of inconvenience. for many years might elapse, between the death of the ancestor, and the naturalization of the nearest relation.” Upon the whole,” the Chancellor says, “ I am satisfied that an alien, becoming a citizen in the most regular manner, does not acquire a right to inherit, or to take and hold land, which belonged to his ancestor, who died before he became a citizen, so as to divest the right of a remoter heir, who was a citizen at the time of the death of the ancestor.” In Wightman vs. Laborde, Escheator, (1 Spear, 525,) it is said, “ The effect of naturalization is to invest the alien with all the rights of natural born citizens, but it has no such retro-active operation as to make an alien capable of taking as heir of one who died before naturalization. He who takes as heir, must take at the instant the last owner died. There can be no abeyance. The succession is cast upon the next of kin who can take, passing by those nearest in blood, but who cannot take on account of alienage or other disability. The heir must be capable of taking at the death of the last owner. There can be no restoration of the right of succession by removing the disability.”

It was pressed with much earnestness, in the argument, that if the defendant’s case is not embraced by any of the Acts of Congress on the subject of naturalization, it, however, comes within the provisions of the Acts of our own Legislature, on that subject; and especially the Acts of 1807 and 1828.

In reference to the first-mentioned Act — that of 1807() apart from the judicial interpretation given to it, in the cases of Richards vs. McDaniel, (2 Mill, 18,) and Wightman vs. Laborde, already referred to, the title of the Act is of itself sufficient to show, that it has not the most remote application to the case under consideration. Its title is as follows: “ An Act to legalize titles to real property derived from or through aliens, and to enable aliens, under certain conditions therein mentioned, to hold, convey, and devise real property.” The following is a summary of its provisions : It provides, that titles derived by contract, grant, or deeds of conveyance, from or through aliens, shall be legalized under certain provisions, one of which is, that the Act shall not affect descents already cast, — and authority is given to all persons holding, or who shall hold, real property in the State, under the said provisions, to convey or devise the land to their children, although born before the grantors or de-visors acquired titles, under the Act. Neither does the defendants’ case derive support from the Act of 1828() — its sole object being to protect from escheat, and at the same time to impart to an alien widow, the capacity to take by “will or descent,” the lands of a deceased husband, who happens to die, leaving no one capable of taking the same under the statute of distributions.

Upon the whole, we are entirely satisfied with the ruling of the Circuit Judge on this branch of the case, and however much we may regret its result, — for it is certainly one of extreme hardship — we have, been wholly unable to discover anything in the present condition of the law, to mitigate its rigor.

The motion is dismissed.

O’Neall, Wardlaw, Withers, and Whitner, JJ., concurred.

Glover, J., absent at the argument.

Motion dismissed. 
      
      
        (a) 5 Stat. 547.
     
      
      
        (a) 6 Stat. 363.
     