
    Doe on the Demise of Huddleston and Others v. Lazenby.
    
      Wednesday, December 7.
    An alien, who (lied, in 1832, and had taken no steps towards naturalization, could not transmit title to real estate to his heirs by descent.
    The statute of February, 1839, for the relief of William Huddleston and others, conferred no title on the lessors of the plaintiff in this suit to the land in controversy.
    ERROR to the Dearborn Circuit Court.
   Perkins, J. —

Ejectment for a tract of land in Dearborn county. The lessors of the plaintiff are John, William, and Robert Huddleston, Mary Smith, late Mary Huddleston, and Robert Smith, her husband. The defendant is Priscilla Lazenby. There are five counts in the declaration; one upon the joint demise of all of said lessors, and four upon separate demises, each for a fourth part of the land. The usual consent rule was entered, and complied with, the cause tried by a jury upon the general issue, and a verdict and judgment were rendered for the defendant. Both parties claim title from the state, each by an act of the legislature supposed to be irreconcilable with that in favor of the other, and the case is one to be added to the already numberless list of those produced by vague and inconsiderate legislation.

The facts are these:

William Huddleston, an alien, departed this life in April, 1832, having taken no step towards being naturalized. At his decease he was in possession, under a deed in fee simple from one Cornelius Vanhorn, of a tract of land containing 316 acres, situate in Dearborn county, Indiana. He left surviving him no wife, nor children, nor parents; but he left three brothers and a sister, and no more. Two of the brothers, Thomas and Robert, reside in Dearborn county, in this state, the other brother, Francis, and the sister Mary, resided and still reside in England, never having emigrated to this . country. Of these brothers, Thomas died in November, 1832, an alien, having never taken any steps towards becoming naturalized, and Robert died in August, 1833, an alien, having, however, the February previous, declared his intention to become a citizen of the United States. Thomas left no children, and is not shown to have ev.er been in possession, jointly with his brothers, or severally, of the land purchased by William of Vanhorn, a part of which is in controversy in this suit. Robert died in possession of said land, and left upon it children, John, William, Robert, and Mary Huddleston, then infants, now four of the lessors of the plaintiff. These lessors have been naturalized. In 1837, said Francis and Mary, the brother and sister in England, petitioned for, and obtained in the Dearborn Probate Court, partition of said 316 acres tract of land. The lessors of the plaintiff in this suit, were made defendants to the petition. • After the share of said petitioners was set off to them, they sold and deeded it, on the 19th of November, 1837, to Priscilla Lazenby, the defendant, for 1,600 dollars, which was paid to them. The lessors of the plaintiff, though then infants, were yet old enough to appreciate matters affecting their interests. They were, as were also their guardians, at the time, fully advised of the sale, and made no objection to it. It is the part of said 316 acres tract, so deeded to Lazenby, for which this ejectment is brought.

In February, 1839, the legislature of this state passed an act, approved on the 15th of that month, which reads as follows:

“ An act for the relief of the heirs of William Huddleston, Thomas Huddleston, and Robert Huddleston.

Sec 1. Be it enacted by the general assembly of the state of Indiana, that all the estate and interest of the state of Indiana in any lands situated in any county in this state, of which the said William, Thomas, and Robert Huddleston, late of Dearborn county, deceased, died seized, acquired by escheat of the same, is hereby released to, and vested in, such persons, being inhabitants of the United States, as could take the same by demise, descent, or in right of dower, if the deceased person, and the persons hereby authorized to take, had been native citizens of this state.

“ Sec. 2. The persons taking under this act shall take estates of the same nature and extent, as they would have taken if they and the said William, Thomas, and Robert Huddleston had been native citizens of this state.”

This act was in force from and after its passage.

In January, 1845, the legislature passed another act, approved on the 10th of that month, the title and first section of which read as follow:

“ An act for the relief of Priscilla Laxenby and others.

“ Sec. 1. Be it enacted by the general assembly of the state of Indiana, that the judgment, order, decree, and proceedings of the Dearborn Circuit Court, at the term of March, 1833, in the case of Robert Huddleston against the residue of the heirs of Thomas Huddleston, deceased, on petition for partition, and the judgment, order, decree, and proceedings of the Probate Court of said county of Dearborn, at the term of November, 1837, relative to the partition of the real estate, which was of William Huddleston, deceased, be, and the same is hereby, declared to be valid and good, and sufficient in law to vest in the several persons therein-mentioned, and the person or persons holding or claiming by, through, or under them, the several tracts of land therein set apart to them respectively.”

The second section declares that those proceedings shall, by all Courts, be held conclusive between the parties to them, and all persons claiming under those parties.

Section third releases all the interest of the state, acquired by escheat in those lands, to the persons to whom the several portions of them were respectively set apart; and the fourth section declares the act in force from its passage.

A good deal of evidence, in addition to the facts already stated, was also given on the part of the defendant, tending to show such facts as it is claimed estop the lessors of the plaintiff from asserting title; and also tending to show fraud in the passage of the act first above-mentioned; but we need not incorporate it into this opinion.

It would seem from the case of Hall v. Timmons, 2 Richardson’s Eq. R. 120, and the authorities there cited, that the lessors in this case were estopped, by their knowledge'of the sale to Lazcnby, and their non-objection to it, but on this point we decide nothing.

It was incumbent on the plaintiff to show title in his lessors to enable him to oust the defendant from possession. He could show no title in them by descent, as such a title must have been deduced through William Huddleston', and ho, being a foreigner who had taken no step toward naturalization, could, at the time of his death, transmit none; Eldon v. Doe, 6 Blackf. 341; and it is not claimed that the act amending an act authorizing aliens to hold real estate, &c., approved January 25,1842, (Laws of 1842, p. 70,) reaches this case, that act only enabling aliens having made no advance towards naturalization, who die after its passage, to transmit an inheritable title. Upon the act of 1839, above copied, alone, is the title of the plaintiff’s lessors rested. Taken literally, that act does not sustain it, because the act does not appear to apply to it. The act designates no particular county in which, and describes no particular piece of land on which, it is to operate. It specifies certain circumstances by a concurrence of which, in reference to any piece of land, we can identify that embraced by the act. Those circumstances are, that the land must be in some county in this state; it must have belonged to the state, by escheat, and William, Thomas, and Robert Huddleston must have died seized of it, not jointly, perhaps; a several and successive seizin, and dying seized, may have sufficed. And by seizin in this act, we understand to be meant, possession. No higher title could have been intended, as all beyond that is assumed by the act to have been at the time in the state.

The facts in this case, therefore, do not bring it within the letter of the law. Not only is Thomas Huddleston not shown to have died in possession of this land, he is not even shown to have ever been upon it. It is not shown to be land, then, of which William, Thomas, and Robert Huddleston died in possession, and consequently was not vested, by the express terms of the law of 1839, in the lessors of the plaintiff; and we do not think an equity is shown in their favor — a circumstance not unentitled to consideration — that should induce us, against Mrs. Lazenby, to resort to a strained construction of the act to extend its operation to this case.

A. Lane, D. S. Major, and J. Sullivan, for the plaintiff.

J. Jiyman and P. L. Spooner, for the defendant.

Per Curiam.

The judgment is affirmed.  