
    *Jackson, ex dem. McCloughry and others, against Lyon. 
    
    NEW YORK,
    May, 1824.
    The act of the 1790, (sess. 13 tive 5to rth¡ military hounty^iands, secGrienlief, 333, validate a pat-who^as^not aLve on the 27th day of March, 1783 ; so that nothing could pass by such a grant. (19 John. 198, S. P.)
    By the act of the third of April, 1807, (sess. 30, ch. 114, 5 W. L. N. Y. 124,) which vests the land patented to John McCloughry, a deceased soldier, in his heirs though aliens, in like manner as it would have descended to them, if they had been citizens of this state at the time of his death, (1781). According to the law of descents of this state, it was intended that the heirs should take according to the law of descents at the time of passing the act. (19 John. 198, S. P.)
    The title of J. M’s heirs, therefore, as it respects any limitation, is to be deemed to have " accrued from the time of passing the act. (19 John. 198, S. P.)
    But the act of April ‘5th, 1803, (sess. 26th, ch. 88, 3 W. L. N. Y. 399, s. 1,) vested military bounty lands therefore granted, in the officer or soldier, as at the time of his death, whenever that happened ; thus constituting him a stock of descent, and passing the land to his heirs ex parte paterna, and for default of them, then ex parte materna j and the legislature could not, by the act of 1807, divest the title of the latter heirs.
    The state has no power to divest the title vested in one set of heirs, and pass it to another; e. g. from the heirs ex parte materna to those who, but for their alienism, would have been heirs ex parte paterna.
    
    In ejectment, the plaintiff claimed title under the alien heirs of a deceased soldier, such heirs being declared capable of-taking by a statute of -1807; but which statute was void because the title had, in 1781, on the death of the soldier, vested in his heir ex parte materna. The defendant, who’claimed title under a deed from one of the alien heirs, showed the outstanding title, but did not connect himself with it; nor did he show that the heir ex pcvrte materna had ever entered or claimed the land, from- 1803, when his title accrued, to 1822. Held no defence $ and that the plaintiff should recover the rights of those alien hehswho had not conveyed; on the ground that the outstanding title was not shown to be a subsisting one \ and a conveyance from the heir ex parte materna might be presumed.
    Ejectment for part of lot No. 10, (Milton,) now Genoa, Cayuga county, commenced in January, 1822, and tried before Platt, (late) J. at the Cayuga circuit, June 1st, 1822, when a verdict was found for the plaintiff, subject to f0p0wjng cas6; with permission for either party to turn ft into a special verdict; It was admitted, on the trial, that letters patent were, on the 13th day of September, 1790, issued, and passed the secretary’s office the 19th of September 1791, to John McCloughry for the lot No. 10, of ° J 
      which the premises in question are a part; that the patentee was born in Ireland, and came to this country in the year 1775 ; and was a lieutenant in the army of the United States in the revolutionary war, and died at the capture’ of Cornwallis, without issue ; that he had, when he died, five brothers, to wit, Alexander, Patrick, Thomas, Gilbert and William, and a sister of the name of Margaret, who were bom in order they are named; that Alexander and Thomas died without issue more . than thirty years since. Patrick died many years since, leaving *issue, Alexander, Thomas, William, Patrick and Jane. Alexander, the eldest son of Patrick, died on his passage to this country, about twenty-one years ago next September. He was coming to this country to claim the land granted to Lieutenant McCloughry. He (Alexander) left Thomas McCloughry, junior, his eldest son and children John, Elizabeth and Jane. Elizabeth is married to James Mills, and Jane to William Cook. The lessors of the plaintiff are William and Margaret, brother and sister of the lieutenant, Thomas, William, Patrick and Jane, the surviving children of Patrick, brother to the lieutenant, and Thomas McCloughry, junior, John, James Mills and Elizabeth his wife, and William Cook and Jane his wife, the children of Alexander, the son of Patrick, of whom Thomas is the eldest. That the lieutenant, if alive now, would be about 74 years old, he being the youngest in the family except William and Margaret. That William, the brother of the lieutenant, is still living, and Margaret, his sister, died without issue about one and a half years since. It was admitted that all these persons were born in Ireland, and were and are British subjects; and that Gilbert McCloughry, the brother of the lieutenant, came to this country about the year 1795, and is named in the act of the legislature, entitled “ An act to enable certain persons therein named to purchase and hold real estates within this state, passed April 3d, 1797.” That in the year 1796 he came on to' the lot, claiming it as sole heir to the lieutenant, and built a log house, and made a'small clearing thereon; and on the 24th day of February, 1797, for the consideration of $1000, conveyed by warranty deed the whole of the lot 10, excepting one hundred acres before conveyed to Michael Dow, to Daniel Avery, who, or bom fide purchasers under him, have ever since possessed the lot, and made valuable improvements. It is admitted that the defendant holds as a bond fide purchaser under Avery. It was also admitted that Thomas McCloughry, junior, one of the lessors of the plaintiff, for himself and for the other lessors of the plaintiff, before the commencement of this action, demanded possession of the premises in question, and offered to pay for the improvements, thereon, or submit, the improvements to appraisement, *which was refused by the defendant. It was further admitted, that in the year 1805, Thomas McCloughry, junior, one of the lessors of the plaintiff, came to this country.to claim the land in question. That he applied to the legislature in 1807, .and procured the passage of an act, entitled “ An act relative to land granted to John McCloughry,” passed 3d of April, 1807, ' '
    Alexander Rpss, a witness on the part of the plaintiff, testified that he knew Gilbert McCl'onghry, a brother of John the lieutenant, in Ireland; that he, the witness, removed to this .country in 1774, and is now 73 years of age; that Gilbert was a man when he was a boy ; thinks he was 15 or J6 years older than the witness 5 that he has heard of him in this country, but never saw him here, That more than twenty years ago he heard Gilbert Me»Clonghry had removed to Canada; but he does not know when he went, ruor bow long he had been gone before he heard this report. That he has never heard whether he was dead or alive. Levi Beardsley, another witness for the plaintiff, testified that he had made inquiries about Gilbert McCloughry, and learned that he had lived at or near Herkimer ; that he left there in 1798 or 1799 ; and that he had been unable to trape him beyond that time and place. It was further admitted, that the mother of lieutenant John McCloiighry, and the-wife of William Barber, were sisters by the name of Adams; the patentee’s father having mar-» tied Jane Adams, and William Barber having married bel sister Margaret Adams. That William Barber and Ms wife were both born and both died in Ireland, long before the declaration of independence of the United States, leaving at their decease only one child, a son by the name of Patrick, who came to America with his wife more than sixty years ago, and settled in Orange county in this state, where he died in September, 1797; and that he left surviving him four children, Ms heirs" at law, to wit, Margaret, Francis, John and Joseph, all of whom were born in Orange county, in the order they are named. That Margaret married John Davidson, a citizen of the United States, by whom she had six children, to wit, David, Jane, Margaret, Catharine, Alexander and Elizabeth, all of whom were born in the United *States, and are living, except Catharine, who is dead, and who died without issue, and whose mother, Margaret, is also dead. That Francis, the eldest son of Patrick Barber, was killed in battle in the revolutionary war, having been married, and leaving at his death two children, to wit, George and Francis, his heirs at law, both of whom are living, and citizens of the United States. That John and Joseph, the other two sons of Patrick Barber, are still living, and reside in the United States, And it was also admitted that all the relatives of the patentee on the part of his father, were and are citizens and subjects of Great Britain, and aliens to the United States. It is not known that any of the above descendants of Patrick Barber have ever claimed the premises in question. It is agreed that the admissions made in tMs case are and sha.ll be subject to all and every exception that might have been made or taken on the trial; and that all objections to the evidence and facts admitted, shall be and are hereby reserved. That all public and private acts of the legislature may be read and used on the argument.
    
      A. Conklin, for the plaintiff.
    
      D. Cady, contra.
    
      
      
         This case was decided in May term, 1824.
    
   Curia, per Sutherland, J.

In Jackson, ex. dem. McCloughry and others, v. Skeels, (19 John. 198,) which was a case upon this same title, it was decided, 1. That nothing passed by the patent to John McCloughry, the soldier, granted the 13th of September, 1790, for the lot in question; he having died in Í781, and the act of.April 6th, 1790, relative to military bounty lands, not authorising a grant to a soldier who was not alive in March, 1783: 2. That the act of April 3d, 1807j (5 W. Laws N. Y. 124,) vests the lands patented to John McCloughry, in his heirs though aliens, in the same manner as it would have descended to them if they had been citizens of this state; but by the true construction of that act, they are to take according to the law of descents, in this state at the time of its passage: 3. That the title of the heirs, *as it respects the statute of limitations, is to be deemed to have' accrued from the time of passing the act.

The evidence as to the death of Gilbert ' McCloughry is essentially the same as it was in the other cause ; where it was held to be too slight to raise the presumption of his death before the passing of the act of April 3d, 1807. One witness swears, that about twenty years before the trial he heard that he had removed to Canada; and he had not heard of him since; another witness swore that he had made inquiries concerning him, not in Canada, but in Herkimer and Montgomery counties, where he lived in 1798 or 99, and could not trace him beyond that period. ■ There is not sufficient evidence of his death. He must be considered, then, as in being in 1807, when the act was passed vesting the title to this lot in the heirs of the patentees, and as having taken the one fourth t¿ which he was entitled And the defendant having deduced a regular title from him, the plaintiffs cannot in any event recover more than three. fourths of the premises in question.

But it is contended on the part of the defendant in this case, that the lands in question never did escheat, and that the act of April 3d, 1807, vesting the title to them in the alien heirs of the patentee was void and inoperative. It appears from the case, that in 1781, when the patentee died, he had a maternal cousin, by the name of Patrick Barber, a citizen and inhabitant of this state; that Barber came to this country more than sixty years before the trial, and settled in Orange county, where he died in 1791, leaving several children, some of whom are still living, and are citizens of the United States.

It is contended, that, on the death of the patentee in 1781, all his heirs, eco parte paterna, being aliens and incapable of taking the estate, it descended to Patrick Barber, his cousin and heir on the part of his mother.

If no title passed to the soldier by the patent of September 13th, 1790, as is said by the court in the case of 19 John, then admitting that Patrick Barber would have inherited, if there had been any inheritance for him to take, he can have no claim to these'premises, because no title was vested in his ancestor. But it was immaterial in that case whether any *title vested in the soldier or not by virtue of the patent; for if a title did pass, still, dying without heirs capable of taking by descent, as he appeared to have done, in that case the land of course escheated to the state. If nothing passed, then the title was -never out of the state; and upon either supposition, the state had a right to make such disposition of the land as was made by the act of April 3d, 1807. But the act of April 5th, 1803, (3 W. Laws N. Y. 399,) provides for the case of officers and soldiers who died previous to the 27th of March, 1783, as follows : “That the title to all lands heretofore granted by letters patent to officers and soldiers serving in the line of this state, in the army of the United States, in the late war with Great Britain, and who died previous to the 27th day of March, 1783, shall be and hereby is declared to have been vested in the said persons at the time of their deaths respectively;” and in Jackson ex dem. Sherwood v. Phelps, (3 Caines, 67,) it seems to have been the opinion of the court, that this was in the nature of a declaratory act; and that it was the intention of the legislature that the title thus declared to exist, should relate back to the time of issuing the patent; though Ch. J. Kent was of a different- opinion.

i If, then, in 1781, when the patentee died, he left heirs • m this county capable of taking, the title to these lots vested in them, (3 John. 1, 7 John. 214,) and nothing passed by the act of 1807. The legislature intended to give land belonging to the state; but if these lots had not .escheated, they did not belong to the state; and the legislature had no right to divest the vested rights of the heirs of the patentee. (Jackson, ex dem. Folliard, v. Wright, 4 John. 75.)

The 8th section of the act of April 5th, 4803, provides the rules of descent established by the act abolishing entails, &c., shall 'apply and govern in the cases mentioned in the first section of the act, &c.

But admitting that Patrick Barber was the legal heir of the patentee at the time of his death in 1781,'and was capable of taking the land in question, no privity is shown between *him or his title, and the defendant; nor is there any evidence that his title, whatever .it may have been, was a subsisting title at the time of the trial; on the contrary, every presumption in^the case is against the fact of its being a subsisting title. He never entered upon the land, nor any one claiming under him. A surrender or conveyance from him may therefore be presumed. (3 Wheat. 224, 230, note. 4 John. 202. 7 id. 278. 10 id. 338, 387.)

The plaintiff is, therefore, entitled to recover three-fourths of the premises in question. But the defendant is entitled, to compensation for his improvements, under the statute the settlement on the lot having been made under color of a bona fide purchase.

Rule accordingly. 
      
       Jackson v. Winslow, (2 John. 80), and Jackson v. How. (14 John. 405 S. P.)
     