JOHN WALKER AND JAMES WALKER v. THE POTOMAC FERRY COMPANY AND SAMUEL BACON

JOHN WALKER AND JAMES WALKER v. THE POTOMAC FERRY COMPANY AND SAMUEL BACON. At Law. — No. 14,036. In an action of ejectment, t.he plea set forth that plaintiff’s title was derived through their mother, still living, who was an alien and was sister to the intestate, and that defendants claim under the heirs of an uncle of the intestate who was capable of taking real estate by inheritance. On demurrer to the plea, it was held that the heirs of the uncle had the better legal right, and that the plaintiff could not derive title by descent from an alien living mother. STATEMENT OE THE CASE. This was ejectment brought by the plaintiff for the possession of a certain piece or parcel of land in the city of Washington, and a count is added to recover the rents and profits. The controversy turns upon the facts alleged in the-third special plea, which reads as follows: “And for a further plea the defendants say that James Dixon, late of this District, died intestate on or about the 26th of January, 1858, seized and possessed in fee-simple of the real estate in the declaration mentioned; that the said James Dixon was a natural-born subject of the crown of Great Britain and Ireland, and emigrated from Scotland, the place of bis birth, to this District on or about the year 1827, and having duly complied with the provisions of law relating to naturalization, was, on or about the 26th day of January, in the year 1839, duly naturalized and admitted to all the rights and privileges of a citizen of the United States, and that the said real estate whereof he died seized and possessed as aforesaid was purchased by him after said naturalization ; that the said James Dixon left surviving him no child or descendant; that his relatives in blood at his decease were a sister and her descendants, the plaintiffs, being children of said sister, and the descendants of a deceased uncle; that said sister was au alien, a natural-born subject of said crown, and was incapable of taking said real estate by descent, and that her said descendants, the plaintiffs, although they had been naturalized at the time of the death of said James Dixon, were likewise incapable of deriving title by descent through a living alien, (or to take because their mother, an alien, was then living,) and that the said descendants of the deceased uncle of said James Dixon were citizens of the United States, and in all respects competent to take by descent from said James Dixon; and that upon his death they entered upon the possession of said real estate, claiming title to the same in fee-simple by descent, to the exclusion of said living alien sister and her said descendants, the plaintiffs; that the title of said descendants of the deceased uncle has passed, by sundry mesne conveyances, to the defendants, and that the only claim of the plaintiffs to said real estate is founded on their capacity to take the same at the death of said James Dixon, as his heirs at law, notwithstanding their ancestor was at his death a living alien, all of which these defendants are ready to verify,” &c. This plea was demurred to, and the issue thus formed was certified to the general term to be heard in the first iustance. J. W. Moore and George H. Paschal, for plaintiffs. Davidge Washington, for defendants. [MAJORITY — By the Court:] By the Court: We think that the plaintiffs cannot hold the land in controversy as against the defendants. At common law an alien could not take land by descent. The plaintiffs are nearer of kin to James Dixon, the intestate, than the heirs of an uncle, for they are the children of a sister. But that sister is an alien, and therefore incapable of taking the land by descent. The heirs of the uncle, though more x’emote in kindred from the intestate, have the better legal right. It is admitted that they can take title to land, and that they draw their title iu this case through one who was capable of taking the legal inheritance. We think it is impossible for the children of a parent still alive to derive an inheritance', when the mother was herself incapable of acquiring that inheritance on account of alienage. There must be judgment for the defendants upon the demurrer to the third plea.