
    William Thomas Daly, Resp’t, v. Margaret Beer, Impl’d, App’lt, and Catharine Powles et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Aliens — Mat take where title of ancestor was bt devise.
    Under § 4 of chap. 115, Laws 1845, as amended by chap. 261, Laws 1874, and chap. 88, Laws 1875, alien heirs at-Iaw may take an absolute title to land, although the title was acquired by their ancestor by devise. In judgment of law a purchase is the acquisition of land by the act of the parties in contradistinction to acquisition by operation of law, and includes title by deed and title by devise.
    Appeal from interlocutory judgment fixing the rights of the parties and directing a sale of the premises described in the complaint.
    Action for partition.
    
      Robert E. Topping, for ajip’lt; Rohe & Keller, for pl’ff, resp’t; Edward Browne, for resp’t, Elizabeth S. Russell; M. H. Topping, for resp’t, Catharine Powles.,
   Dykman, J.

This is an appeal from an interlocutory judgment in an action for the partition of real property.

The facts of the case are undisputed, and are substantially as follows: David E. Pierson, who died seized and possessed of the property in question, was the common source of title. He was twenty one years of age at the time of his death, in February, 1888, and he received this property by devise from his father, David Pierson, who died in October, 1871.

David E. .Bierson died intestate, and left no father or mother, brother or sister, or descendant of any brother or sister, no paternal uncle or aunt, or descendant of any such uncle or aunt. He left two maternal aunts, Margaret Beer and Catharine Powles, two of the defendants in this action, and also two cousins, William Thomas Daly, the plaintiff, and Elizabeth Sarah Russell, one of the defendants, both the children of a deceased maternal aunt.

All of these persons are of English parentage, and none of them had been in the United States previous to the death of David E. Pierson. The plaintiff became a resident of the state of Hew York in February, 1889, and at that time declared his intention to become a citizen of the United States, and filed in the office of the secretary of state of Hew York the deposition required by the statute, that he was a resident of the state of Hew York, and intended to reside permanently in the United States, and become a citizen thereof as soon as he could be naturalized, and that he had taken such incipient measures as the law requires to enable him to obtain naturalization.

Catharine Powles and Elizabeth Sarah Russell are both aliens.

Margaret Beers is a citizen, although the court found she was not. Halsey v. Beer, 52 Hun, 366; 24 N. Y. State Rep., 713. She became such by virtue of her marriage with John Beer in July, 1876, and her claim in this action is that she is the sole heir •of David E. Pierson and entitled to the whole of this property, and that the other parties have no interest therein, She has been in possession of the premises since the death of David E. Pierson.

The cause was tried before a judge without a jury and he decided that the parties were seized in fee of the premises as tenants in common, and the defendant Margaret Beer has appealed from the judgment entered upon such decision.

We had occasion to examine the question involved in this appeal in the case of Maynard v. Maynard, 36 Hun, 227, and our conclusion was that under § 4 of chap. 115 of the Laws of 1845, as amended by chap. 261 of the Laws of 1874, and chap. 38 of the Laws of 1875, alien heirs-at-law might take an absolute title to land.

The same question was involved in the case of Wainwright v. Low, decided at the present term of this court, 32 N. Y. State Rep., 1044, where we held that the amendatory statute of 1875 was retroactive in its operation and preserves the rights of persons who before its passage acquired rights to land which they could not enjoy by reason of the disability of alienage.

Our views were fully expressed in those cases and require no repetition here, but the defendant Beer also contends that David B. Pierson took the property by descent and not by purchase, and that the plaintiff and the other defendants were therefore excluded from the succession to this estate. The language is: “ If any alien resident of this state or any naturalized or native citizen of the United States, who has purchased and taken or hereafter shall purchase and take a conveyance of real estate within this state,” * * * and the construction for which the appellant contends is inadmissible. In judgment of law a purchase is the acquisition of land by act of the parties, in contradistinction to acquisition by operation of law, and includes title by deed and title by devise.

The question was involved in the decision of the case of Stamm v. Bostwick, 40 Hun, 38, and it was then said that “acquisition by purchase includes every mode of taking title except descent or inheritance.”

In the case of Hall v. Hall, 81 N. Y., 136, it was said in relation to this same law that: “ The section expressly authorizes a. resident alien to take a conveyance of lands, and there seems to be no public policy which would justify the inference that the legislature intended to discriminate between a title by deed and by devise.”

Our conclusion therefore is that the judgment should be affirmed, with costs.

Pratt, J., concurs.  