Guyer v. Smith

Eaetol, J., delivered the opinion of this Court. This was an action of Ejectment brought by the appellants against the appellees on the 1st day of October 1858, ²⁴⁶ for Lot No. 876, containing fifty acres of land. Plea non cul. No questions of location arise in the case.

The plaintiff offered in evidence the award of the lot in question, under the Act of 1788, (November session,) to Thomas Adams, and a deed for the same from Adams to John Guyer, of the city of Annapolis, dated the thirtieth day of March 1792. They then offered, by consent, evidence taken in the Island of St. Bartholomew. From this evidence it appears that John Guyer died in the Island of St. Bartholomew on the 13th of March 1841, leaving a will’, by which he devised all the residue of his property, real and personal, and wherever situated, to his two sons, Benjamin Y. Guyer and James Guyer, (the lessors of the plaintiff,) who, as described in the will, “are also the children of Miss Margaret Richardson.” The execution of the will was proved by the only witness examined, who also proved that John Guyer had resided in the Island of St. Bartholomew for more than forty years, engaged in mercantile pursuits, that the lessors of the plaintiff are natives and citizens of the Island, and owe allegiance to his Majesty, the King of Sweden and Norway; and that to the best of his belief their father and mother were not lawfully married, and that their mother is partly of African blood or descent. The defendants then offered in evidence an escheat patent for this lot (No. 876,) under the name of “ Yam-land,” issued to George Smith, of Alexander, dated the 28th of March 1862, and reciting that the warrant therefor was obtained on the 30th of October 1860.

The patent is in the usual form of escheat patents granted by the Land Office. The questions presented by this appeal arise upon the plaintiffs’ prayer, which was . refused, and the 5th, 6th and 7th prayers of the defendants, which were granted. The facts disclosed by the evidence, and upon which the prayers are based, show that John Guyer, the testator, was a citizen of the United States domiciled ²⁴⁷ abroad, and that bis devisees, the lessors of the plaintiff, are his illegitimate children, and aliens, born and residing in the Island of St. Bartholomew. As they take by devise, they are considered in the law as purchasers; this is decided by the Supreme Court of the United States in Fairfax’s Devisee vs. Hunter’s Lessee, 6 Cranch, 603 .

Judge Story delivering the opinion of the Court, page 619, says: “It is clear at the common law, that an alien can take lands by purchase, though not by descent, or in other words, he cannot take by the act of law; but he may by the act of the party,” and after citing the authorities for this position, he continues: “Nor is there any distinction whether the purchase be by grant or devise. In either case the estate vests in the alien,— Dow. on Dev., 316, &c. Park Rep., 144. Co. Litt., 26, not for his own benefit but for the benefit of the State, or in the language of the ancient law, the alien has the capacity to take, but not to hold lands, and they may be seized into the hands of the sovereign.” See also the opinion of Mr. Justice JoNSON in the same case, pages 628-630.

The question whether an alien holding lands by purchase can maintain an action for their recovery, is also considered in the case cited. On page 620, Judge Story says, “It seems indeed to have been held that an alien cannot maintain a real