This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
597. Aliens. At common law, an alien might take land by purchase, that is, by transfer inter vivos or devise, and hold the same until a forfeiture in favor of the state was enforced by a proceeding of "office found,"90 and a like view, that only the state can object in such a case, has been applied in connection with modern statutes precluding an alien, or a non resident alien, from holding land.91
By the rule of the common law, which still exists in so far as it has not been changed by statute, an alien cannot acquire an estate in land by operation of law, as by descent,92 or under the law in relation to dower and curtesy,93 for the reason, as it is stated by the common law writers, that the law will not do a vain thing by giving to a man that which he cannot keep. In case the next of kin or some of them cannot take by descent because they are aliens, the land passes, not to the state, but to others related in the same or in the next degree, to the exclusion of the aliens,94 in the absence of a statute which declares a different rule.95
140 N. Y. 576, 24 L. R. A. 322, 35 N. E. 964; Walsh v. Bouton, 24 Ohio St. 28; Com. v. New York, L. E. & W. R. Co., 132 Pa. St. 591, 596, 605, 7 L. R. A. 634, 19 Atl. 291; Com. v. Wisconsin Chair Co., 119 Ky. 500, 84 S. W. 535; 8 Harv. Law Rev. p. 15 et seq, article by A. M. Alger, Esq.
90. Co. Litt. 2b, 42b; 1 Bl. Comm. 371; 2 Bl. Comm. 249, 274, 293; 3 Bl. Comm. 258; 2 Kent's Comm. 54; Doe d. Gover-neur's Heirs v. Robertson, 11 Wheat. (U. S.) 332, 6 L. Ed 488; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741; Doe d. Rouche v. Williamson, 25 N. C. 141 • Sands v. Lynham, 27 Grat. (Va.) 291, 21 Am. Rep. 348.
The disability, or approximate disability of an alien, as it exited at common law, to hold land, has ordinarily been referred to as a matter of feudal or national policy, arising from the inability of one who owes allegiance to a foreign sovereign to perform the military services incident to the ownership of land, but in 1 Pollock & Maitland, Hist. Eng. Law 446, it is suggested that "the King's claim to seize the lands of aliens is an exaggerated generalization of his claim to seize the lands of his French enemies."
91. Madden v. State, 68 Kan. 658, 75 Pac. 1023; Pembroke v. Huston, 180 Mo. 627, 79 S. W. 470; Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N. W. 873; Wright v Saddler, 20 N. Y. 320; Smith v. Smith, 70 N. Y. App. Div. 286, 74 N. Y. Supp. 967; Oregon Mortgage Co. v. Carstens, 16 Wash. 165, 35 L. R. A. 841, 47 Pac. 421. Compare Wunderle v. Wunderle, 144 111. 40, 19 L. R. A. 84, 33 N. E. 195.
If an alien who acquires land dies before the state enforces its right of forfeiture, the land ipso facto escheats, without any proceeding on the part of the state, as in the case of one who dies without heirs, the theory being that an alien who has no right to hold the land as against the state has no heritable blood for the purpose of determining rights of descent.96 . On the
92. Litt, Sec. 198; Co Litt, 42b; 2 Blackst. Comm. 249, 293, and Chitty's note; Orr v. Hodgson, 4 Wheat (U. S.) 453, 4 L. Ed. 613; Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219; Utassy v. Gied-inghagen, 132 Mo. 53, 33 S. W. 444; Glynn v. Glynn, 62 Neb. 872, 87 N. W. 1052; Montgomery v. Dorion, 7 N. H. 475; Luhrs v. Enner, 80 N. Y. 171; Jackson's Lessee v Burns, 3 Binn. (Pa.) 75; Ehrlich v. Weber, 114 Tenn. 711, 88 S. W. 188; Barzinzas v. Hopkins, 2 Rand. (Va.) 276.
93. Alsberry v. Hawkins, 9 Dana (Ky.) 177, 33 Am. Dec. 546; Buchanan v. Deshon, 1 Har. & G. (Md.) 280; Foss v. Crisp. 20 Pick. (Mass.) 121; Sutliff v. Forgey, 1 Cow. (N. Y.) 89; Priest v. Cummings, 20 Wend. (N. Y.) 338; Quinn v. Ladd, 37 Ore. 261; 59 Pac. 457; Reese v. Waters, 4 Watts & S. (Pa.) 145; Bennett v.
Harms, 51 Wis. 251, 8 N. W. 222. See Cooke v. Doron, 215 Pa. 393, 7 L. R. A. (N. S.) 659, 7 Ann. Cas. 502, 64 Atl. 595.
94. Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. Ed. 613; Wunderle v. Wunderle, 144 111. 40, 19 L. R. A. 84, 33 N. E. 195; Jackson v. Jackson, 7 Johns. (N. Y.) 214; Luhrs v. Eimer, 80 N. Y. 171; McKellar v. McKellar, 1 Speer (S. C.) 536; Ehrlich v. Weber, 114 Tenn. 711, 88 S. W. 188; Hardy v. De Leon, 5 Tex. 211.
95. See In re Pendergast's Estate, 143 Cal. 135, 76 Pac. 962; State v. Stevenson, 6 Idaho, 367, 55 Pac. 886.
96. Co. Litt. 2b; 2 Kent's Comm. 54; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. Ed. 453; Donaldson v. State, 182 Ind. 615, 101 N. E. 485; Fry v. Smith, 2 same theory, that an alien has no heritable blood, one cannot claim land as by descent from a citizen, if the relationship can be traced only through an alien.97 And, on a like theory, the native wife or husband of an alien has been regarded as not entitled to claim dower or curtesy.98
Dana (Ky.) 38; Slater v. Nason, 15 Pick. (Mass.) 345; Farrar v. Dean, 24 Mo. 16; Montgomery v. Dorion, 7 N. H. 475; Jackson v. Adams, 7 Wend. (N. Y.) 368, Mc-Cormack v. Coddington, 184 N. Y. 467, 77 N. E. 979; Rubeck v. Gardner, 7 Watts (Pa.) 455; Barrett v. Kelly, 31 Tex. 476; Sands v. Lynham, 27 Gratt (Va.) 291, 21 Am. Rep. 348. But see Abrams v. State, 45 Wasb. 327, 9 L. R. A. (N. S.) 186, 122 Am. St. Rep. 914, 88 Pac. 327, discussed in 5 Micb. Law Rev. 462. By 11 &
12 Wm. III. c. 6, the disability to inherit by reason of the alienage of one through whom descent is claimed was removed, and a similar statute has been adopted in a number of states. But these statutes do not enable one to claim by descent if the alien through whom he claims is still alive. McCreery v. Somer-ville, 9 Wheat. (U. S.) 354, 6 L. Ed. 109; McLean v. Swanton,
13 N. Y. 535
97. Levy v. M'Cartee, 6 Pet. (U. S.) 102, 8 L. Ed. 334; Beavan v. Went, 155 111. 592, 31 L. R. A. 85, 41 N. E. 91; Meadowcroft v. Winnebago County, 181 111. 504, 54 N. E. 949; Furenes v. Mickel-son, 86 Iowa, 508, 53 N. W. 416; Meier v. Lee, 106 Iowa, 303, 76 N. W. 712; Smith v. Lynch, 61 Kan. 609, 60 Pac. 324; Cramer v. McCann, 83 Kan. 719, 112 Pac. 832; Jackson v. Green, 7
Wend. (N. Y.) 333; McLean v. Swanton, 13 N. Y. 535; Stewart v. Russell, 91 N. Y. App. Div. 310, 86 N. Y. Supp. 625, affirmed 184 N. Y. 601, 77 N. E. 983. This doctrine is not recognized in Connecticut. Campbell's Appeal from Probate, 64 Conn. 277, 24 L. R. A. 667, 29 Atl. 494.
It has been decided that a brother traces descent from his brother directly, and not through their father, and that hence the alienage of the father will not affect the right of one brother to inherit from the other if both are citizens. Collingwood v. Pays, Sid. 193, 1 Vent. 413, Bridg. 414; Wilcke v. Wilcke, 102 Iowa, 173, 71 N. W. 201; Luhrs v. Eimer, 80 N. Y. 171. And so grandsons of one grandfather have been held to inherit directly, so that the alienage of the grandfather is immaterial. McGregor v. Corn-stock, 3 N. Y. 408. On the other hand, it has been held that the alienage of the claimant's father prevents inheritance from a paternal uncle or great uncle. Jackson v. Fitz Simmons, 10 Wend. (N. Y.) 10; Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416. See Levy v. M'Cartee, 6 Pet. (U. S.) 102, 8 L. Ed. 334. The distinctions asserted in this respect are, as remarked by Chancellor Kent (2 Comm 55), "very subtle."
98. Congregational Church at Mobile v. Morris, 8 Ala. 182;
In this country the common-law restrictions upon the right of aliens to acquire and hold lands and transfer them have been considerably relaxed; in many states they having the same rights in this regard as native citizens, and in some the prohibition extending only to nonresident aliens.99.Occasionally they are required to dispose of the property within a certain number of yea rs of its acquisition. In many cases, the right of an alien in a particular case to acquire and retain land has been upheld by force of treaty provisions between the United States government and the country to which the alien owes allegiance.1
So far as the statutes of any state may prohibit the acquisition or holding of lands by an alien, they have usually been construed as operating, like the common-law prohibition, differently in respect to rights acquired by descent and those acquired by purchase.2 In a number of states, moreover, it is provided that no title to real estate shall be invalid on account of the alienage of a former owner, and in many it is declared that, when one claiming by descent is otherwise entitled, the fact that the father, mother, or other ancestor through whom the descent is derived was an alien shall not bar the claim.3