Sullivan v. Burnett

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

This action, under the local law equivalent to an action of ejectment, involves the title to certain real estate in the city of St. Louis, of which Edward Sullivan, a naturalized citizen of the United States, who died intestate in the year 1866, was seized in fee at the time of his death.

Both parties claimed under him. The court below specially found that Emily Sullivan, one of the plaintiffs, was his sister, and that Jeremiah Sullivan, the other plaintiff, was a son of his deceased brother.

It was admitted on the trial that the plaintiffs were then, and always had been, non-resident aliens, and that neither had made a declaration of intention to become a citizen of the United States.

The court below held that under the laws of Missouri in force at the death of Edward Sullivan, the plaintiffs were incapable of acquiring the real estate in dispute, especially as there were several aliens resident in this country who had declared their intention to become citizens, and also a resident alien in Missouri, to whom the real estate would descend subject to the limitations mentioned in those laws.

Under the foregoing view of the case, the court found it unnecessary to pass upon the other facts and questions of law presented by the defendants.

Judgment was rendered for the defendants, and the plaintiffs sued out this writ.

The remaining facts are stated in the opinion of the court, and the statutes therein mentioned are as follows:--

'GENERAL STATUTES OF MISSOURI, 1865. TITLE XXVIII. CHAPTER 110.

'SECT. 1. All aliens residing in the United States, who shall have made a declaration of their intention to become citizens of the United States, by taking the oath required by law, and all aliens, residents of this State, shall be capable of acquiring real estate in this State, by descent or purchase, and of holding and alienating the same, and shall incur the like duties and liabilities in relation thereto, as if they were citizens of the United States.

'SECT. 2. It shall be lawful for every alien, who, except for his alienage, would be capable of acquiring real estate by devise or descent from any person thereafter dying, capable of holding, at the time of his death, real estate in this State, to sell and convey, in the manner provided by law for the conveyance of real estate, any real estate which he may acquire by virtue of this section, to any other person capable of holding real estate by virtue of the laws of this State; and such sale and conveyance, when executed and delivered in the manner provided, shall have the effect to pass all the title to any real estate which such aline may have acquired to the same, by descent or devise.

'SECT. 3. All such sales and conveyances shall be unll and void, unless made in good faith within three years next after the final settlement of the estate of the ancestor or devisor: Provided, that if such real estate be in litigation between such alien and any other person, then such real estate, or so much thereof as shall have been in litigation, shall be sold and conveyed within three years after the termination of such litigation.

'CHAPTER 129, id.

'OF DESCENTS AND DISTRIBUTIONS.

'SECT. 1. When any person having title to any real estate of inheritance, or personal estate undisposed of, or otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following course: First, to his children or their descendants in equal parts; second, if there be no children or their descendants, then to his father, mother, brothers, and sisters and their descendants in equal parts; third, if there be no children or their descendants, father, mother, brother, or sister, not their descendants, then to the husband or wife; if there be no husband or wife, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts; fourth, if there be no children or their descendants, father, mother, brother, sister, or their descendants, husband or wife, grandfather, grandmother, uncles, aunts, nor their descendants, then to the great-grandfathers, great-grandmothers and their descendants in equal parts; and so on in other cases without end, passing to the nearest lineal ancestors and their children and their descendants in equal parts.'

'SECT. 8. In making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent from the intestate is, or has been, an alien.

ACT OF MARCH 30, 1872.

'SECT. 1. Aliens shall be capable of acquiring, by purchase, devise, or descent, real estate in this State, and of holding, devising, or alienating the same, and shall incur the like duties and liabilities in relation thereto as if they were citizens of the United States, and rcsidents of this State.

'SECT. 2. Any female born in the United States, owning real estate or any interest therein in this State, who shall marry an alien and reside in a foreign country, may, at any time, notwithstanding such marriage or residence, convey such real estate, or any interest therein, by deed, or may at any time devise the same by last will: Provided, the same be done in either case in conformity with the general laws of this State concerning the conveyance of real estate by deed and the making of wills.

'SECT. 3. Chapter one hundred and ten of title twenty-eight of the General Statutes of Missouri, being chapter five of Wagner's Missouri Statutes, and an act entitled 'An Act to amend chapter one hundred and ten of title twenty-eight of the General Statutes concerning real property and its alienation,' approved March 13, 1867, are hereby repealed.

'SECT. 4. This act shall take effect on the fourth day of March, in the year eighteen hundred and seventy-two.' Mr. Leroy B. Valliant and Mr. Willoughby N. Smith for the plaintiffs in error.

Mr. Gustavus A. Finkelnburg for the defendants in error.

MR. JUSTICE HARLAN delivered the opinion of the court.