
    Jackson, ex dem. M‘Cloughry and others, against Skeels.
    The act of the i reo, °f rdative bountym¡ands¡ «¡d not authorise a grant to a soldier who was March, 1783; so that nothing eouid pass by
    the 3d of April, 1807, (sess. 30. eh. 114.) which vests the lands patented to J. a deceased soldier, in his heirs, though aliens, in like manner as it would have descended to Iheni, if they had been citizens of this state, at the time of his death, (1781) according to the law oi>cfescents of this state, it is intended that the heirs should take according to the law of descents at -the time of passing the act; and the title of the heirs, as it respects any limitation, is to be deemed to have accrued from the time of passing the act.
    THIS was an action of ejectment, brought to recover part of lot No. 10, in the town of Genoa, in the county of Cayuga, tried at the Cayuga circuit, in June, 1820, before Just¡ce Van Ness. The plaintiff gave in evidence, a r o 3 patent for lot No. 10, in Milton, now Genoa, and lot No. 16, in Locke, granted to John M'Cloughru, late a lieutenant . . 7 - . . . in the revolutionary army, and his heirs and assigns forever, dated the 13th of September, 1790, and passed the secretary’s office, the 19th of December, 1791 ; and a special act of the legislature, passed the 3d of April, 1807, entitled, “an act relative to land granted to John
    
    
      Alexander Ross, a witness for the plaintiff, testified, that he was born in Longford in Ireland, where he resided until the year 1774, when he came to this country; that he was well acquainted with Lieutenant John MlCloughry and his family, at Longford ; that J• MCloughry came to this country about the year 1775, and entered the American army, and died in 1781, without issue; that he left five brothers living in Ireland, at the time of his death, to wit, Alexander, Patríele, Thomas, Gilbert, and William, and a sister named Margaret; the witness understood, that Alexander, the eldest brother, died about thirty years ago, without issue ; that Patrick died many years ago, leaving issue ; that Thomas also died without issue; that Gilbert, the fourth brother, as the witness had heard, came to this country, after the revolutionary war, and died about thirty years ago; and that William and Margaret were still living in Ireland; the witness testified as to the ages of the brothers of the deceased soldier, from information derived from persons who had come from Ireland, and from his own family, not from the father or mother of J. MIC. D. Crawford, another witness, testified, that William and Margaret, brother and sister of the deceased soldier, were living in Ireland, in 1801, and were unmarried. That Patrick died, leaving four children, Alexander, Thomas, William, and Jane, (lessors of the plaintiff;) that Alexander, the eldest son of Patrick, died on his passage to New-York, leaving four infant children, the eldest of which, Thomas, was now about thirty-two years of age. The defendant gave in evidence a warranty deed from Gilbert MCloughry and Anne his wife to Daniel Avery, dated February 24, 1 796, for lot No. 10,' excepting one hundred acres before sold to M. Dow. The defendant also read in evidence, a deed from Daniel Avery to Philip Strong, dated December 7, 1798, for fifty acres, the premises in question ; and deduced a title from Strong to the defendant. It appeared, that persons, under contract with Avery, bad settled on the lot, in 1798 and 1799, but not on the part held by the defendant. Walter; 
      Wood and Glen Cuyler testified, that. they knew Gilbert J\J‘Cloughry, about the year 1795 or 1797, when he appeared to be about fifty years of age ; that he lived some time in Herkimer, and afterwards in Montgomery county. The defendant read in evidence, “ an act to enable certain persons therein named to purchase and hold estates within this state,” passed April 5, 1803; and “an act to enable certain persons therein named to purchase and hold real estate,” passed April 4, 1807.
    The jury found a verdict for the plaintiff, subject to the opinion of the Court, on a case made; and if the Court should be of opinion, that the plaintiff was not entitled to recover, then a judgment of nonsuit was to be entered.
    
      L. Beardsley, for the plaintiff,
    contended, 1. That the patentee having died without heirs in this country, who could take, the land escheated, and became vested in the people of this state, without office found. (2 Bl. Com. 11. 107. Wilson v. Berkley, Plowd. 230.) The patentee, having come to this country before the declaration of independence, he became an American citizen; and although the patent issued after his death, yet by operation of the acts of the legislature relative to the military bounty lands, the land is to be deemed vested in the soldier, as at the time of his death. (L. N. Y. sess. 26. ch. 88. 3 Webster’s ed. 399. 3 Caines’ Rep. 62—69. 2 Johns. Rep. 80. 14 Johns. Hep. 405.) Though an alien who purchases land, holds it until office found; yet he cannot take and hold by descent. (1 Johns. Cas. 399. 3 Johns. Cas. 109. Co. Litt. 2. note 5. Plowd. 229, 230. 1 Com. Dig. Alien, C. 1.) Here were no legal representatives, of. the deceased soldier, who could take, at his death, under the act. The legislature have, by various acts and resolutions, given a construction to the common law in relation to these military lots, by treating them as escheats ; and there is nothing in the acts under which the patent issued, that can warrant, the inference that the legislature- intended that the lands should •descend to alien heirs. The lands were given to the soldier, or his legal representatives. If lands are granted where they should escheat, it is a void grant. (T. Raym. 242.)
    2. If, then, this land vested in the people, there was nothing to devest their right, previous to passing the act of the third of April, 1807, by which the land passed to the heirs of the patentee. This case does not come within the ninth article of the treaty with Great Britain, of 1794. (3 Caines, 68, 69. 2 Johns. Cas. 29. 4 Johns. Rep. 75.) The act of the third of April, 1797, authorising Gilbert MiCloughry and others to take and hold real estate, granted no title. Nor does the act of the fourth of April, 1807, authorising certain persons therein named to purchase and hold real estates, apply to this case. That act is a mere transcript of the third section of the act of the 26th of' March, 1802; and it cannot avail, for Gilbert MiCloughry had no title when he conveyed; and if he ever acquired any, it was only for one fourth. Besides, the act was intended merely to defend bona fide purchasers, who had purchased from aliens, from any claims of the state; and, moreover, it was not passed until the day after the act under which we claim. Our rights could not be devested by a subsequent act. (4 Johns. Rep. 75.) The act of the 3d of April, 1807, expressly recognises the doctrine for which we contend, that the land had escheated, and became vested in the people of this state ; it vests the land in the heirs of thje patentee, in like manner as it would have descended, had they been citizens, at the time of his death; and it is made inheritable by the heirs, though aliens, according to the law of descents of this state.
    3. It appears that Gilbert M'C. was the fourth son of the patentee’s father; and the patentee died in October, 1781, when the English rule of descent was in force here, and the land therefore descended to the elder brother; and Thomas M'C., at whose instance the act was passed, being the eldest son of the eldest brother of the patentee, the title vested in him. The lessors of the plaintiff are all the persons who could have any claim, except Gilbert, who, at most, could be entitled to one fourth only. But there is no evidence that Gilbert was living when the act of 1807 was passed. There is no proof of his being alive jp to 1800 ; and after an absence of seven years, the death )f a party may be presumed.
    4. The statute of limitations ought not to be applied to his case. The statute did not begin to run until 1807, • béfore which time the lessor had no right of entry. Until the estate was vested in the people, and no laches can be imputed to them. (6 Comyn Dig. tit. Prerog. D. 71. Bac. Abr. Prerog. E. 6. 4 Johns. Rep. 202.)
    
      Cady, contra.
    1. The plaintiffs claim is barred by the statute of limitations. It was not the object of the act of 1807, to grant a“new title to the heirs of the deceased soldier; but merely to remove their disability as aliens, and to place them in .the same situation as if they had been citizens of this state. The act (1 N. R. L. 303. sess. 36. ch. 80.) vested the titles to bounty lands, in the case of a deceased soldier or officer, at the time’of his death; and it is under that act only, that Lieutenant M‘Cloughry could have any claim or title. The act requires, in cáse the land should have been settled under colour of a bona fidepurchase, that the improvements should be paid for. The act of the 3d April, 1807, (sess. 30. ch. 114. 5 Webst. Ed. 124.) did not take away any disability of Patrick and his children. It is in favour of the brothers and sister of John 31‘C. then living in Ireland. This is apparent from the language of the preamble, which ought always to be taken into consideration, especially in construing a private act. The children and grandchildren of Patrick, who was then dead, are not within the scope of this act. The lessors, therefore, can recover only on the demises of William and Margaret, the only brother and sister of the patentee, then living.
    Again ; in 1803 there was a bona fide purchaser in possession under Gilbert, who would have been heir to the deceased soldier ; and the evidence does not warrant the conclusion that he was- dead in 1807, when the act under which the lessors claim passed. He appears to have been living in 1801 or 1802 ; and the presumption of death, is not allowed, unless it is shown that inquiry has been made of the family of the party, or of persons who are the most likely to know whether he is alive or not. There was no evidence that any such inquiry was made.
    2. By the act of the 5th April, 1803, the legislature intended that no person should, be disturbed in his bona fide possession, after five years.
    
      8. If Gr. J1/‘C. entered at all, he entered as a tenant in common, and that entry did not alter the character of his possession. (13 Johns. Rep. 406.)
    4. The statute of limitations commenced to run against Alexander, the eldest son of Patrick, in his lifetime; and where, an adverse possession has commenced in the life time of the ancestor, the operation of the. statute is not prevented by the title descending to a person under a legal disability, (15 Johns. Rep. 169.)
    5. On the 3d of April, 1797, an act was passed authorizing Gilbert MlC. to take and hold land, &c. He was thus relieved from the disability of alienage, and, in 1803, was capable of taking and holding lands as if he was a natural born citizen. So that when the act of 1803 passed, he was the only person capable of taking; and he did take the land, and the defendant claims as a bona fide purchaser under him.. The title of Gilbert could not be impeached for alienage, and was, therefore, perfect.
    
      E. Williams, in reply,
    observed, that independent of the act of 1790, the land could not vest in the deceased soldier ; and the moment the patent issued, the title escheated. The act of the 3d of April, 1807, gives the title to the brothers and sister of the patentee in Ireland ; and that title is to be regulated according to the new statute of descents. If P. and his children are to be excluded, then Gilbert, who was not then in Ireland, ought to be excluded. But when the whole act is examined, it will be evident that it was intended to give the title to the heirs at law of the patentee, according to the new law of descents.
   Woodworth, J.

delivered the opinion of the Court. The act of the 6th of April, 1790, gave to letters patent for the military bounty lands, an operation from the 27th of March, 1783, so as to be deemed to have vested a title in the grantees from that time 5 but' this act was not considered as authorizing grants, when the person to be designated as the grantee was not alive in March, 1783. (Jackson, ex dem. Sherwood, v. Phelps, 3 Caines, 68.) The consequence is, that nothing passed by the grant to John M'Cloughry; the title to the lot remained vested in the state. The act of the 3d of April, 1797, (sess. 30. ch. 78.) authorized Gilbert MlCloughry to hold lands within this state as a natural born citizen might do, but granted no title to this lot. The act of the 3d of April, 1807, after reciting the patent, vests the lands in the heirs of John MlCloughry, the patentee, in like manner as it would have descended to them, if they had been citizens of this state at the time of his death, and be inheritable by their heirs, though, aliens, according to the law of descents of this state, which I understand to be the law regulating descents at the time of passing the act. From the facts in the case,' I take it for granted, that the father of John M'Cloughry was dead; if so, the land vested in Gilbert, William, and Margaret, the surviving brothers and sister, (if Gilbert was then living,) to each an undivided one fourth; and to Thomas, William, Patrick, and Jane, children of Patrick, a brother of the patentee, four fifths of the remaining one fourth; and to Thomas, John, Elizabeth, and Jane, children of Alexander,' deceased, who was a son of Patrick, the residue of the one fourth : thus the lessors of the plaintiff are seized of three fourths of the premises, provided Gilbert was living on the 3d of April, 1807; but if he was not, and died without issue, then they were seised of the whole. I am inclined to think that the evidence is too slight to presume the death of Gilbert in 1807. Alexander Ross, a witness for the plaintiff, “ thinks he heard that Gilbert was dead about twenty years agobut it does not appear that any inquiry was made, or from whom the information was derived.

The act of April 4th, 1807, (sess. 30. c. 123.) does not interfere with the plaintiffs’ claim for three fourths; it merely protects the title before conveyed to a citizen of this state, and then in his actual possession, so that it should not be questioned, by reason of the alienage of the person from or through whom such title might have been derived. If Gilbert acquired a title to one fourth by the act of April 3d, 1807, so far as respects that part, the act may apply.

It has been urged, that there was an adverse possession of more than twenty years. That will depend on the question, when did the plaintiffs’ title first accrue ? The title did • lot pass from the state till the 3d of April, 1807, which is ess than twenty years. The limitation of five years in he act of the 5th of April, 1803, by the seventh section of he act of April 7, 1806, (sess. 29. ch. 187.) is extended to 823. On this ground, there is no harto the right of recorery. The acts of 1803 and 1806 apply to the remedy only. E’o extend the time for bringing suits, rested in the sound iscretion of the legislature, and did not impair any vested tight of the defendant. The settlement on this lot appears o have been made under colour of a bona Jide purchase rom Gilbert M‘Cloughry, on the 24th of February, 1797, ind, consequently, the defendant is entitled to compensation "or his improvements.

Judgment for the plaintiff, for three fourths.  