Doe, on the demise of Blount v. Horniblea, 3 N.C. 36, 2 Hayw. 36 (1798)

March 1798 · North Carolina Superior Court

3 N.C. 36, 2 Hayw. 36

Doe, on the demise of John Gray Blount vs. John Horniblea.

TfJECTMENT for the one half of a Lot, No. 7, in the towp-of Washington, and upon not guilty pleaded, the evidence -was, that this lot belonged to three men by the names of Bonner, - add had been in their family from the year 174if till the 29th of July, 1790, when they sold it to Hatridge, who y/as born in Scotland and came to this country in the year 178?' or 1788, arc! died seized, after the purchase ; and that the trustees pf the University o.n the sijfth of May, 1795, sold the pone to the lessor of the plaintiff as having escheated’to and vested in them by the act of 1789, ch. 21, sec.' 2, Upon the death of-Hatridge, his clerk kept possession for his heirs, who resided in Europe, and that possession' has been kept ever since for them, first by one and then by another.

'"Taylor for the defendant,

made the following objections to the Plaintiff’s recovery

First — Hatridge, the purchaser, was an alien, and purchased for the benefit of the state ; and the title accrued to the state by the alienage of the purchaser, not by escheat ; and therefore the University had not any title to convey to'the lessor of the plaintiff..".-

'■ Secondly — admit that the premises escheated upon the death of Hatridge without heirs inheritable, the title did not vest by escheat until'fin entry made for that 'purpose by some one au-thorised by the publick ; the Lord’s title by escheat is not complete till he has entered" on the lands and tenements escheated» 2 BL Com'. 245. 3 Bl. Com. Í73,179» ‘

Thirdly — If thé tide was’ vested in the state without entry, so that they could convey to the University, still the University has no more privileges as a corporation than individuals have as individuals, and so could not convey to the lessor of the plaintiff before entry, a right of entry cannot be conveyed by then?. This is recognized by many decisions of the courts of this country, and is stated as law by all the books that treat-of the subjects.

Harris for th.e plaintiff.

Hatricige continued in possession íiil he died ; the state did not in all that time disturb his possession, and therefore the presumption is that he was a citizen; he might have become so by taking and subscribing the oath of allegiance according to the laws of the country.

As to tl;e second objection, the King in England, who is the representative of the public, may grant and obtain cboses in action ; the public h.ere may do the same — the state in this respect succeeds to ?,11 the privileges .q£ the crown. Such a principle was allowed for the public good, and is equally necessary here as in England, and now as it was before the chauge of government» 4Ba. Ab. 214•• ’ 1 P. Wr ?52. ..

As to the third objection, the rule that choses in action cannot be transferred, wag of use when first adopted ; but by a gradual change pi circumstances, it has been long deemed even in England, to be a very inconvenient and useless rule ; and it may be well doubted whether it is proper tr« be received here in its full extent: it is cei tainly a mere nominal rule at this day, for jibe vendee may still use the name of the vender and recover: he pi ted S wilds Com. 300. 4 Term, 34Q.

But if the rule has been received here and confirmed by judicial determinations., which I do not remember, it does not apply to the present case 5 for our act of Assembly, 1715, ch. 38, sec. 5, provides that all conveyances of land done and executed according to the directions of that act, shall be valid, and pass estates in land or right toother estate without livery of seisin, &c. So that since this act, where the party cannot make livery of seizin, because he has not the seisin, his conveyance is as good gs before the act it could have been, where he was in possession and did not make livery of seizing and therefore since the act, the grantor need not make any entry, that being dispensed with by the act.

Per curiam.

Haywood and Stone, Judges.-;

— When an alien purchases lands in fee, those lands vest in him, and the state is entitled to have them divested out of him if they think proper to exert their right, by pausing an office to be taken finding his alienage § but until such office b.e found, the title continues in him 5 and as he resides in the country and upon land purchased here, he is legally deemed to be a citizen as to this purpose, ’till the contrary be found, Page’s case, 5 Re. 52, third resolution, also Cro. El. 123, abridged in 1 Ba. Ab. 81. It is better the law should be so than that it should require the party to shew his citizenship, whenever the. question incidentally arises before the court, when perhaps it is not foreseen nor expected ; for if $n office be found upon the very point, he ernnot be taken unaware®; be has notice of the question j he may traverse the very fact and satisfy it upon issue joined. Katridge therefore, having died in possession, '«ni no office finding his alienage, having ever been taken, he is to be deemed a citizen: as he died without any heirs in this country, or elsewhere inheritable to his estate, it is an estate that accrues to the public, for want of an owner, and may properly enough be called an estate eschea-isd r Whether it vested or notin the public without entry, may be decided, either upon the law produced and relied upon by the defendant’s, counsel, or by considering it independent of that law, as land, without any owner to inherit it bin such as are aliens. If the-Lord is entitled bv entsy, it is vested in the state v/ithoutentry for xvher'evera private person is entitled upon entering, the public is entitled without entering, 4 Re. 58. Or ifit be considered as land left without any owners w-ho can succeed as-heirs,, but such as are aliens, then also the law casts it upon the public,, because the freehold cannot be in abeyance ; it must, vest somewhere, and in the alien heirs it cannot vest, and- therefore by operation of law must be vested in the public without any act-to be done by them. 1 Ba. Ab. 87, who cites Co. Litt. 2, Leon. pt. 61. The title then of the premises in question upon, the facts proven in the cause was in the public, and by the act of, If79, was transferred to .the University. As to the question -whether they could vonvey to the lesson-of the plaintiff,uhe ge=. neral rule is, that a right.of entry or of action, cannot conveyed — we do not know that the force of it is weakened'where-applied to the case of a corporation. The Gases relied on by the plaintiff’s counsel, admit the existence of the rule, though they, question the propriety of it at this day: It has be^n recog-, nised by many determinations in the courts of this country, and these too of very modern date ; ho wever} as this is .a]question, that very much concerns the University, and those who now-are or hereafter snay become claimants under them, it had. better be reserved for a little more consideration ; this may be effected by a verdict for the plaintiff, subject to the opinion of the court upon this point, whether a conveyance by the University to the lessor of the plaintiff, is valid under the circumstances ®£ its having been made when there-was.a possession in a third person claiming adversely to the University.

The verdict was lor the plaintiff accordingly, subject to the opinion of the eourt upon that question.