
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810,
    Roderick Ennas v. Gaurence Franklin.
    The plaintiff in an action to try titles, claiming as heir at law of an American citizen, proven that he was himself an alien. Jt was adjudged that he ought not to recover, but be nonsuited; and that his alienage might, in such case, bo taken advantage of without a plea in abatement. Aliens cannot take real property by descent.
    Motion for a new trial. Trespass to try titles, tried before Bay, J., in Sumter district, in October, 1808. Plaintiff’s deduction of title was as follows. Grant to John Chisholm, in 1774, who died in 1796, intestate, leaving one brother and three sisters, living in Scotland,'aliens, bis next of kin. One of the sisters proved to be dead, intestate, before the commeneemenl of this action, and plaintiff, her child, born in Scotland, and never in this country. Several points arose on the trial, and were urged as gtoutids for a new trial; but as the resolution of this court was founded on one ground only, it will bo unnecessary to take notice here of any other.
    There was a verdict for the defendant.
    Against a new trial it was objected, that the plaintiff, by his own showing was an alien, and that an alien cannot take by inheritance, or maintain an action to recover the fee. 1 Bac. Abr. Tit. Alien. That the grantee was not a British subject, and, therefore, the treaties with Great Britain did not apply, la answer to this objection, it was said that no advantage can be taken of the alieuage of the plaintiff, but by a plea in abatement. And that until office found, or proceedings to judgment under the escheat law, the title of an alien is good. 1 iiawy. 87. 4 Com. Dig. 413.
    In reply, it was urged that, though it may be necessary, in many cases, to plead alienage in abatement, yet there may be other cases wherein it may be proper, and necessary, to take advantage of that circumstance without pleading it, as where plaintiff is not an alien himself, but derives his title from, or through an alien. So where the plaintiff, by his own showing, demolishes his title, by proving that he is an alien. Cro. Car. 001. 4 T. R. 301. 1 Inst. 492. An alien cannot inherit, cannot take, and therefore cannot hold till office found, as perhaps he may do, where he takes by purchase.
   Grimke, J.,

delivered the opinion of the whole court, May 2d, 1810. Where the plaintiff, claiming land in fee, shows by evidence on his part that he is an alien, and claims the fee by inheritance, he defeats his claim, and ought to be nonsuited. Go. Lit. 189, C. An alien has uu inheritable blood. Plaintiff claims as heir. This is a new link in l'.is chain of title. He .has proved that he is not the heir of the grantee. Tile fee fell by escheat to the State, or passed to the next of kin capable of inheriting. Plaintiif made out no title.

Note. Another question in the case was, whether this action lies against one who is not in possession of the land in dispute, at the time of bringing the action? Another was, whether this action lies against a casual trespasser on land which he does not pretend to claim? See.treaty.between ü. tí. and G-. B., Anno 1794, art. 9. “British subjects, who’now hold lands, &c., shall continue to hold them, &c, and may grant, sell, or demise,&c , nor shall their heirs,&c , be regarded as aliens.” 4 Johns. 79. IV aturaiization not to Be presumed; matter of record.

Bland ing, and Richardson, for the plaintiff

Nott, for the defendant.

Motion rejected.  