I. Capacity to take and hold.1
20 Pickering (Mass.), 121. - 1838. [Reported herein at p. 645.]
20 Wendell (N. Y.), 338. - 1838.
[Reported herein at p. 692.]
3 Wheaton(U. S.), 563.-1818. [Reported herein at p. 71.]
II. Capacity to transfer or transmit title.
Shaw, C. J., in
13 Pickering, 523. - 1833.
In regard to the other objection, that Bishop Cheverus, by accepting a civil and ecclesiastical office in France, renounced his
1 It is not intended to treat very fully the subjects in Part V. They belong to the course on the "Law of Domestic Relations and Persons." For other cases on these topics sec Woodruff's" Cases on the Law of Domestic Relations and Persons." The present New York law as to the capacity of aliens to take, hold, transmit and transfer interests in land will be found in the N. Y. R. P. L., §§ 4 to 8 See also Id., §§ 1 and 2. - Ed,
American allegiance, and so became an alien, and that therefore nothing passed by his deed, the consequence which is suggested would not follow if the fact were proved. Were he in all respects an alien, having been once well seised of an indefeasible estate, his conveyance would not be void; it would vest an estate in his grantee, subject only to be defeated by the government.
The other objections to the petitioner's title cannot be sustained, especially when taken by a stranger, one who does not himself claim the same title. So far as the alienage of Thomas Scanlan is relied upon, as disabling him to join with his wife, in this petition, it is in abatement only, and comes too late. If it be contended that he could not take and become seised jointly with his wife in her right, this is contrary to the rule of law, which is, that an alien may take but cannot hold against the government; he takes a defeasible estate, subject to escheat, at the suit of the government. But till office found he is seised. If it be contended that on a feoffment to the wife the husband becomes seized by act of law, and as in case of descent the law will not cast seisin of an estate upon one who cannot hold it, the consequence would be that the wife would remain seised alone, and that she must petition by her husband as guardian or next friend, instead of joining with him in the usual form. But this would be mere matter of form, not affecting the title or merits of the case.