9 Mass. 377

October, 1812

Alienage of a commandant must be pleaded in abatement.

The estate of a tenant for life being vested in the commonwealth, all his right, &c., was sold by order of government. After the death of tenant for life, and within five years after the death of the purchaser, the reversioner entered upon his heir, tenat at sufferance, and his entry was held to be lawful.

This was a writ of entry in the quibus, in which the demandant counted upon his own seisin of lands in Townsend, in this county, within thirty years, and upon a disseisin within that time by the tenant. The general issue being joined, a trial was had before the Chief Justice, at the sittings here after October term, 1809, and a verdict found, by consent of the parties, for the demandant, for one moiety only of the lands demanded, subject to the opinion of the Court on the following case, viz.: --

William Martin, and Anne, his wife, were formerly seised of the tenements demanded in fee simple in her right, and continued so seised until the term of the Court of Common Pleas holden within and for the county of Middlesex, in December, 1782; at which term, by the judgment of the same Court, all the said William's right, title, interest, and estate, in the tenements demanded, were vested in the commonwealth. Afterwards, in June, 1786, a committee duly authorized by the General Court, bargained and sold all the commonwealth's right, title, interest, and estate, aforesaid, to Henry Woods, the father of the tenant, who entered by virtue of the same conveyance, became seised of the tenements aforesaid, as the law required, and continued so seised until his death, in February, 1804; and on his death, Samson Woods, the tenant, his son and heir, entered into the same tenements, became seised thereof, as the law requires, and continued so seised until the entry of the demandant hereafter mentioned.

The said Anne died in 1793, leaving the demandant, her son, and Gilbert Ainsley, her grandson, her next of kin; and the said William Martin afterwards died July 11, 1799. Afterwards, in February, 1808, the demandant, as heir to his mother, Anne Martin, entered into the demanded tenements, and became seised thereof, as the law requires, and continued so seised thereof. Afterwards, the said Samson, the tenant, reentered upon, and ousted him.

The demandant was born in Boston, in the year 1752, and always dwelt there until 1774, having, before that time, been admitted an attorney of the inferior Court of Common Pleas for the county of Suffolk. In 1774, he removed

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from Boston to the Island of Jamaica, where he lived and practised law until 1791; except that in March, 1783, he was in Paris, and thence went to London, under a royal pass, where he resided some time, and then returned to Jamaica. In 1791, he left Jamaica, and came to Boston, with the intention of living and practising law there as an attorney; and was accordingly, in the same year, recommended by the bar of the county of Suffolk to the justices of the Supreme Judicial Court, for admission as an attorney of that Court; but he was not admitted. In the same year he removed to the state of New York, in which state he has ever since dwelt, and now dwells. On the 4th day of August, 1792, he appeared before the Supreme Court of Judicature of that state, and in open Court took and subscribed the oath of abjuration and allegiance to that state, the oaths of office as an attorney and counsellor at law, and the oath to support the constitution of the United States, and was thereupon admitted an attorney and counsellor at law in the said Court. On the 8th day of October, in the same year, James Lansing, Jun., one of the justices of the Supreme Court of Judicature of the state of New York, certified under his hand that the demandant was a citizen of the said state, and duly admitted a counsellor at law of the same court.

The said Gilbert Ainsley is the son of Elizabeth Ainsley, who was a daughter of the said Anne Martin, who survived her. The said Gilbert was born in the year 1774, at Boston, where his mother then lived; and in the same year he removed, with his parents, to the province of Canada, in which province, or in some other part of the now British Dominions, he has ever since dwelt, and not in any of the United States.

And it is agreed by the parties, that, if it appear to the Court that any of the facts aforesaid are improperly admitted in evidence under this issue, then all such facts, so improperly admitted, are to be laid out of the case, which

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is to be considered by the Court as if those facts were not in it.

Now, if the Court shall be of opinion, from such of the facts aforesaid as are properly admitted in evidence on this issue, that both the demandant and the said Gilbert Ainsley can, by law, inherit lands from the said Anne Martin, and that the entry of the demandant was lawful, then the verdict is to stand. But if the Court shall be of opinion, from such of the facts aforesaid as are properly admitted in evidence, that the demandant can, and that the said Gilbert cannot, by law, inherit lands from the said Anne Martin, and that the said entry was lawful, then the verdict is to be set aside, and a general verdict for the demandant for the whole of the tenements aforesaid is to be entered. But if the Court shall be of opinion, from such of the said facts as are properly admitted in evidence under this issue, that the demandant cannot inherit lands from the said Anne Martin, or that his entry aforesaid was unlawful, then the verdict is also to be set aside, and a general verdict for the tenant is to be entered, and judgment is to be rendered accordingly.

The cause was argued October term, 1810, by Ward and F Blake for the demandant, and Davis (Solicitor-General) and Bigelow for the tenant.

For the tenant, it was contended, 1. That the demandant had no right of entry in February, 1808, and if so, he could not recover in this action. That entry was unlawful, because the seisin and possession of Henry Woods was lawful, and gave him an apparent right of possession; and the mere entry of the lawful owner does not operate to oust the tenant in possession, except he is in by abatement, intrusion, or disseisin. [Note 1] Further, Henry Woods was seised more than five years, which with the descent cast, tolled the right of entry. Henry Woods, deriving his title directly from the commonwealth, could not have been a disseisor.

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2. The demandant was an alien, and therefore incapable of inheriting. The whole history of his life, as detailed in the case, shows him to have remained a subject of the king of Great Britain. The certificate of Judge Lansing was extrajudicial, and, at the utmost, can import no more than his opinion. [Curia. The certificate can have no effect on the question.] The duty of allegiance and the rights of citizenship are necessarily connected; a man cannot, at the same time, owe two coordinate allegiances. [Note 2] The principles maintained by this Court in the cases of Gardner & Kilham vs. Ward & Al. [Note 3] determine the demandant to have been an alien at the time of the descent cast; and it is the state of the party's allegiance, at that time, which fixes the right of inheritance. [Note 4]

For the demandant, it was insisted that, if he was an alien, it was matter in abatement only, and advantage could not be taken of it under this issue. Even alien enemy is to be pleaded in bar, and cannot be given in evidence under the general issue. [Note 5]

It is not denied that, if the demandant was an alien at the time of the descent cast, he could not inherit at common law. But he never has been for a moment an alien.

He was born in Massachusetts, and has always continued a citizen thereof, owing his natural allegiance thereto. The common law, which was the same at the time of the demandant's birth, at the time of the descent cast, and at the present time, knows but one rule of allegiance, which is, that it commences at a person's birth, and continues until his death, whatever fanciful theories the writers upon natural law may have invented on the subject. The commonwealth was the successor of the king. There was no dissolution of the government. The common law continued in full force, and by it the demandant's allegiance was transferred to the commonwealth. The rules of good pleading show the law upon the subject. The plea of alienage always shows the party's place of birth; but it would be a strange plea that, from a person's being born

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in Boston, should infer that he was an alien from the commonwealth of Massachusetts. Every one born within this territory is capable of inheriting, unless expressly disabled by an act of the government. There is no such act applying to this demandant.

By the definitive treaty of peace between the United States and his Britannic Majesty, it is expressly stipulated (article 6) that no person shall suffer any future loss or damage, either in his person, liberty, or property, by reason of the part he may have taken in the war.

The demandant's right is perfectly saved by Mr. Jay's treaty of 1794. If it should be yielded that he was an alien at the time of the descent cast, viz., in 1793, the ninth article of that treaty stipulates, that neither British subjects then holding lands in the territories of the United States, nor their heirs or assigns, shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens. At the time of the execution of that treaty, the demandant held the reversion of the lands in question, dependent on the death of his father, then tenant by the courtesy.

As to the demandant's right of entry, the conveyance to Woods was of no more than William Martin's interest, which was a life estate only. If the conveyance was of more, it was void so far as it exceeded that. Then, after Martin's death, in July, 1799, Woods was a disseisor. He died in January, 1804, within five years, and so the demandant's right of entry was not taken away.

For the tenant in reply. It is immaterial what estate the government undertook to convey. If any present interest passed by it, Woods's entry was lawful; and certainly where the entry of a tenant in possession was lawful, an entry upon him cannot be so, nor can it oust him of his title.

The action stood continued under advisement until this term.

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By the Court. Whether Martin, the demandant, be or be not an alien, cannot be made a question in this action. It can be shown only in abatement. As we have decided in the case of Ainsley vs. Martin [Note p383] that Ainsley is not to be considered an alien, the demandant can claim a moiety only of the land demanded.

The question which has most required our attention, respects the demandant's right of entry. William Martin's estate in the demanded premises being seized by the government, and judgment of forfeiture having been rendered, the same was conveyed by the agents for the commonwealth to Henry Woods, from whom it descended to the present tenant. After William Martin's death, the tenant held an estate at sufferance. The demandant's entry upon him was lawful. The verdict found for the demandant for a moiety is right, and let judgment be entered for him accordingly. [Note a]


[Note 1] 3 Black. Comm. 175, 178. -- Co. Lit. 237, a.

[Note 2] 1 Hale's Hist. P. C. 86.

[Note 3] 2 Mass. 236 , 244.

[Note 4] 4 Cranch, 321. -- Dawson's Lessee vs. Godfrey.

[Note 5] Co. Lit. 129. -- 1 Chitty on Pleading, 435. -- Brooke, Tit. Denizen, 3, 10. -- Rast Entries, 252.

[Note p383] This case was decided in March last, in Suffolk. A report of it will be found in this volume, among the cases decided in March, 1813, [post, 454.]

[Note a] [See Sewall vs. Lee, ante, 363. -- Ed.]