Rowan County, NC - Rouche v. Williamson, 1842

DOE ON DEM. OF F. R. AND J. B. ROUCHE v. WILLIAM WILLIAMSON.

1. That part of the 40th section of our State Constitution which 
   authorizes a "foreigner, who comes to settle in this State, having 
   first taken the oath of allegiance to the State," to "purchase or by 
   other just means acquire, hold and transfer lands or other real 
   estate," is still in force.
2. The latter part of that section declaring when he shall become a 
   citizen is repealed by the Constitution of the United States.
3. Independent of the privilege conferred by the first part of the 
   section above referred to, an alien may not only take a fee by 
   purchase, but the estate remains in him with all the incidents 
   belonging to it when taken, until and unless the sovereign, who has 
   right thereto because of forfeiture, vests the forfeited estate in 
   himself by an office of entitling.
4. An alien is therefore entitled to bring an action of ejection.
5. A plea in abatement to the disability of the lessor of the plaintiff 
   in ejectment is not a good plea.

APPEAL from Nash, J., Fall Term, 1842, of ROWAN.

It waa an action of ejectment, to which the defendant pleaded not 
guilty. Both the lessors of the plaintiff and the defendant claimed 
under one Samuel Fraley. The case was, that two several judgments were 
obtained against the said Fraley, at the April Term, 1841, of ROWAN, 
that executions issued bearing tests of the same term, which were by 
the Sheriff levied on the premises in controversy, and at a public sale 
made in pursuance of these levies the lessors of the plaintiff became 
the highest and last bidders, and the premises were accordingly 
conveyed to them by the Sheriff by deed, bearing date 18 September, 
1841. The defendants were admitted to be in possession. Tills action 
was commenced on 19 February, 1842. It was objected by the defendant 
that the lessors of the plaintiff were aliens, and, therefore, this 
action could not be maintained. The lessors of the plaintiff alleged 
that they had been duly naturalized, and to show this, produced two 
copies of records, one of Lincoln County Court, at August Term, 1842 
(after the institution of this suit), and the other of the said Court 
at July Term, 1833. These copies were objected to, but the objection 
was overruled. A deed from Samuel Fraley, the defendant in the 
execution, conveying the premises in question to a trustee to secure
certain debts therein specified was introduced, which deed bears date 
after the teste of said executions. It was further proved that the 
defendant was put into possession of the premises by the trustee after 
the issuing of the executions.

The Court instructed the jury that an alien may take an estate in land 
by act of parties, but not by act of law; that when an alien purchases 
land, the estate vests in him, but he holds it for the benefit of the 
sovereign, and he may be divested of it by commission found; that until 
so divested he has entire dominion over it; that the lessors of the 
plaintiff, if still aliens, can maintain this action, because it is not 
a real action, but a mixed one. An alien cannot maintain a real action, 
as the old action of ejectione firma was, but this is an action of 
trespass in ejectment, in which nothing but the possession was 
recovered. The Court further instructed the jury, that as to the record 
of naturalization of Francis R. Rouche, it set forth that he, at the 
time he came to this country, was an infant, and, under the act of 
Congress, the decree, of the Court had relation back, so as to render 
valid the title acquired by him under the Sheriff's deed. And that, as 
to the record of 1833, the Court was of opinion, and so instructed the 
jury, that it was competent to the State of North Carolina to say, by 
whom, and upon what terms, her territory might be held.

There was a verdict for the plaintiff, and a new trial moved and 
refused. Judgment being rendered for the plaintiff, the defendant 
appealed to the Supreme Court.

Copies of the records referred to in the above case:

State of North Carolina, Lincoln County - ss
County Court of Pleas and Quarter Sessions, July, 1833

John Rouche, of the age of twenty-three years, who was born in the 
county of Fowntann, in the Kingdom of France, came into open Court and 
reports himself as having arrived at New York, in the State of New 
York, in the United States of America, in April, 1831, and that he 
intends to settle himself in the county of Lincoln, in the State of 
North Carolina, and also declares upon oath, in open court, that it is 
bona, fide his intention to become a citizen of the United States of 
North America, and to renounce all allegiance and fidelity to any 
foreign potentate, prince, State or sovereignty whatsoever, and 
particularly to Louis Philippe, King of the French. He also swears, 
that he will support the Constitution of North Carolina, and will true 
allegiance bear to the said State.
Certified by the Clerk in due form.

North Carolina }        Court of Pleas and Quarter Sessions,
Lincoln County } ss            August Term, 1842

To the Worshipful Justices of said Court:
Francis R. Rouche, declares on oath, that he was born in the department 
of the Rhine, in the Kingdom of France, on 30 September, 1814, that he 
sailed from the port of Havre de Grace, Kingdom of France, in June, 
1832, and arrived at the port of New York, in the State of New York, in 
July, 1832 — that at the time of his arrival he was a minor, under the 
age of twenty-one years, to wit, between the years of seventeen and 
eighteen, and that he has resided in the United States ever since; and 
that it was then bona fide his intention to become a citizen of the 
United States. And he hereby renounces forever all allegiance and 
fidelity to any foreign Prince, Potentate, State, or Sovereignty, and 
particularly all allegiance and fidelity to Louis Philippe, King of the 
French. He therefore prays to be now naturalized, according to the act 
of Congress made and provided in this behalf.

FRANCIS RICHARD ROUCHE
Certified by the Clerk to be sworn to in open court.

North Carolina, Lincoln County — ss
Court of Pleas and Quarter Sessions, August Term, 1842

The petition of Francis R. Rouche, a native of the department of the 
upper Rhine, in the Kingdom of France, praying to be naturalized and 
admitted to the privileges of a citizen of the United States, coming on 
to be heard, and it having been proven by the oath of John B. Rouche, 
to the satisfaction of the Court, that the said Francis R. Rouche 
arrived in the United States in the month of July, 1833, and that he 
was then a minor under the age of twenty-one years, to wit, between 
seventeen and eighteen, and that he has continued to reside in the 
United States ever since; and it moreover appearing to the satisfaction 
of the Court that it has been bona fide his intention for three years 
immediately preceding his application, to become a citizen of the 
United States, and well disposed to the good order and happiness of the 
same. And the said Francis R. Rouche having declared on oath that it 
was bona fide his intention of becoming a citizen of the United States, 
three years immediately preceding this application, and having on oath 
abjured and renounced forever, all allegiance and fidelity to any 
foreign Prince, Potentate, State or Sovereignty, and especially having 
renounced and abjured forever, all allegiance and fidelity to Louis 
Philippe, King of the French, and having taken an oath to support the 
Constitution of the United States, and the Constitution of the State of 
North Carolina: It is ordered and decreed by the Court, that he be 
naturalized, and be admitted to all the privileges of a citizen of the 
United States.

Certified by the Clerk in due form.

Barringer and Hoke for the plaintiff.
No counsel for the defendant.

(Supreme Court) GASTON, J. The lessors of the plaintiff set up title to 
the premises in dispute, as purchasers at a judicial sale. The Sheriff 
sold, by virtue of two writs of fieri facias, against the property of 
Samuel Fraley, the owner of the premises, and to the validity and 
regularity of one of these writs, no objection has been taken. It is 
unnecessary, therefore, to examine the objection made to the other.

The lessors were both natives of the kingdom of France, and, at the 
time of their purchase, and at the date of the Sheriff's conveyance to 
them, neither had been naturalized. But one of them (John Rouche) had, 
before the purchase, as a preparatory step for his naturalization, 
reported himself in a Court of Record in this State, as having arrived 
from France, at New York, more than two years previously thereto, and, 
declaring his intention to become a citizen of the United States, then 
and there took an oath of allegiance to the State. And the other 
lessor, who, at the time of his arrival in the United States, was a 
minor, and therefore not under the necessity of taking that preparatory 
measure, was, before the trial of this suit, but after it was put to 
issue, regularly naturalized.

Section 40 of the Constitution of this State declares, that "every 
foreigner who comes to settle in this State, having first taken the 
oath of allegiance to the State, may purchase, or by other just means 
acquire, hold, and transfer land or other real estate; and after one 
year's residence, shall be deemed a free citizen." The Constitution of 
the United States having conferred on Congress the power to establish 
an uniform rule of naturalization," and Congress having accordingly 
prescribed the mode by which aliens may be naturalized, the last part 
of this 40th section in the State Constitution is no longer in force; 
but the residue of that section comes not into conflict with the 
Constitution, or any law made under the Constitution of the United 
States, and therefore is in full force. Consequently all the 
disabilities of alienage, so far as they extend to the acquiring, 
holding, and transferring of land and other real estate in North 
Carolina, were removed from John Rouche by his taking the oath of 
allegiance. Upon this state of facts, one of the joint lessors of the 
plaintiff being qualified, at the time of the purchase made, to hold 
lands, the other then being wholly disqualified as an alien, and 
remaining such at the date of the demise laid in the declaration, and 
at the time when the issue was joined, but becoming naturalized before 
trial of the issue, several interesting questions are very naturally 
suggested. But we shall not enter upon the investigation of any of 
them, because we hold that the objection of alienage, supposing it to 
apply in all its force and to both the lessors, would not avail to 
destroy the plaintiff's right to a recovery in this action.

A loose notion has to some extent prevailed in the profession of this 
State, that an alien cannot maintain an ejectment, and this notion we 
suppose has arisen from a dictum to that effect reported in Barges v. 
Hogg. 2 N. C., 485. That was an action, of trespass, quare clausum 
regit, in which the defendant pleaded in abatement that the plaintiff 
was an alien born. Upon demurrer, the Court held the plea bad, upon the 
plain ground that the possession of land by an alien is not necessarily 
illegal; that he can rightfully hold land, which he has bought, until 
the State take it from him, and that while thus rightfully holding it, 
he is entitled to all legal remedies for an injury to his possession. 
But in pronouncing this judgment, according to the Reporter, the Court 
took a distinction between the action of trespass on the one hand, and 
the action of ejectment or other actions for the recovery of a freehold 
on the other, and observed of these that they could not be maintained 
by an alien. This dictum, so far as it applies to the action of 
ejectment, we believe to be incorrect.

It is an elementary maxim, that an alien has capacity to take, but no 
capacity to hold land. Care must be taken, however, not to be led into 
an error by this epigrammatical distinction. When it is said that an 
alien has not capacity to hold land, no more is meant than that he 
cannot hold it against the sovereign, should the sovereign choose to 
assert his claim thereto as forfeited. But against all the rest of the 
world, the alien has full capacity to hold, and he can hold even 
against the sovereign, until the estate of the alien be divested by an 
office found, or some other equally solemn sovereign act. 

It would, therefore, seem clear, that the alien being thus subject to 
the right of the sovereign to divest his estate for a forfeiture, and, 
until he shall be thus divested by office found, the owner of the 
estate, he may convey, lease, and do every other act in relation 
thereto, which a rightful owner may do, and can maintain any action and 
have the benefit of any remedy, which the law gives to secure the 
enjoyment of property unto those whom the law recognizes as entitled to 
its enjoyment. But these inferences, however logically they may appear 
to follow from the principles clearly established, seem to come into 
conflict with certain positions expressly laid down in books of 
undoubted authority. Thus it is said, Co. Lit., 426, Shep. Touchstone, 
204, in the most general terms, that an alien cannot lease, or enfeoff, 
or make any other conveyance. But upon examination it will be seen, 
that the meaning of these positions is, that the grantees, feoffees or 
lessees of the alien take defeasable estates only; that they are in no 
better plight than their grantor, feoffor or lessor, and herefore hold 
their estates subject to be divested by the sovereign on office found. 
Shep. Touchstone, 56 and 132; Preston on Convey., 257; Fairfax v. 
Hunter, 7 Cranch, ut supra; 2 Kent Com., 61 and the authorities there 
cited. So also we find it stated in very general terms that an alien 
cannot maintain a real or mixed action. But it is also stated, that if 
alienage be pleaded to an alien in league, that is to say, an alien not 
an enemy, it cannot be pleaded "to the writ or to the action, but in 
disability of the person as in case of villenage and outlawry" - but if 
it be pleaded to an alien enemy, "it may be pleaded to the action." It 
has been thought by very learned Judges that it is difficult, at least, 
to reconcile the doctrine, that a plea of alien born is a good plea to 
the person of the demandant in a real action with the well established 
law, that, until office found, an alien purchaser is the rightful owner 
of the estate, and because of a supposed incompatibility between this 
doctrine, and the acknowledged dominion of such alien in the land, the 
Supreme Court of New York have solemnly decided that this was a bad 
plea in abatement, when pleaded in a writ of right.

It has occurred to us that perhaps the doctrine may be thus accounted 
for and explained. In real and mixed actions, strictly so-called, the 
demandant seeks to obtain, by means of the law, the seisin of a land or 
tenement, whereof he has never had seisin, or of the seisin whereof he 
has been unlawfully deprived. Now as the law will not aid aliens to get 
land, because by such means the realm may be impoverished, it will 
withhold its aid to restore or to give him seisin, though, while he 
remains seized, it will protect him against wrong-doers. It may also 
be, that, while the alien is seized, the law regards him as holding for 
the use of the sovereign, but the law deems him an improper person to 
take such seizin for the King, without the King's license. But, be this 
as it may, it is manifest if the plea of alien-born be a plea 
impeaching the personal ability of the plaintiff to prosecute a real or 
mixed action, and therefore cannot be pleaded in bar to the action, or 
even in abatement of the writ, the doctrine, that it is a good plea, 
when properly pleaded to the person demandant, is perfectly consistent 
with the settled principle, that until office found, an alien purchaser 
is rightfully seized of the land.

Nothing can show this more clearly than Page's case, 5 Co., 52. An 
office had there been found before certain commissioners, by force of a 
commission under the seal of the Exchequer, but it was held that such 
office was insufficient and void, because to entitle the Queen to the 
land of an alien, there must be an "office of entitling," one "that 
vests the estate and possession in the Queen, where she had but a right 
or title before" and such an office must be by force of a commission, 
under the Great Seal. And in illustration of the principle, that the 
estate was in the alien and not in the crown, until office found, the 
following case was referred to by the Court: "If an alien and subject 
born purchase lands to them and their heirs, they are joint tenants, 
and shall join in an assize, and survivor (i. e., survivorship), shall 
take place, until office found." An alien may, therefore, not only take 
a fee by purchase, but the estate remains in him with all the incidents 
belonging to it when taken, until and unless the sovereign who has 
right thereto because of forfeiture, vests the forfeited estate in him 
by an office of entitling.

Upon the trial of an ejectment under the common rule, and on the plea 
of not guilty, nothing is in dispute but the right of the plaintiff's 
lessor to demise the land, whereof the defendant is in possession. The 
plaintiff is entitled to a verdict upon showing that, at the date of 
the confessed demise, his lessor had a legal title to the possession of 
the premises. And this legal title to the possession must belong to 
him, who is recognized by the law as having the estate in the premises. 

If, therefore, we should regard the action of ejectment as in all 
respects analogous to the properly so-called, real or mixed actions, 
for which it has been substituted in practice, we should be bound to 
hold that as a plea in bar to the action, or as matter of evidence on 
the general issue the alienage of the lessor of the plaintiff, who has 
shown a good title as purchaser, will furnish no defense to the tenant. 
If the action be one which, because of the personal disability of the 
lessor, his lessee ought not to be permitted to maintain, this matter 
of personal disability must be pleaded in abatement.

Pleas in abatement are certainly very rare in actions of ejectment, but 
they may be pleaded whenever right so requires. 

But in our opinion, such a plea would not be good in an action of 
ejectment. Pleas, which take exception to the personal competency of 
the parties to sue or be sued, are not founded on any objection to the 
writ or declaration. Perhaps, therefore, they do not strictly fall 
within the definition of pleas in abatement; but as they offer formal 
objections merely, and do not deny the right of action, they are 
usually considered as of the nature of pleas in abatement, and pass 
under that denomination. As they are pleas of personal exemption from 
being sued, or of personal incompetency to bring the suit, they are 
necessarily restricted to the persons sued and suing. Upon principle, 
they are pleas personal to the parties, plaintiff and defendant in the 
action, and no instance that we are aware of can be found, where a 
dilatory plea of this kind was allowed, except as applied to one or the 
other of the parties. Now dilatory pleas are not such favorites of 
courts of justice, as to induce them to admit of such pleas, where the 
law does not distinctly recognize them. And the dilatory plea now 
spoken of has, if possible, less than the ordinary claims of pleas of 
that character, to an indulgent reception. The remedy by ejectment, as 
now used, is almost a creature of the Courts. It has been framed, 
moulded and improved from time to time, so as to present, in the least 
embarrassed and most direct shape, the question of title to the land in 
dispute. For this purpose, and so far as substantial justice requires, 
it is indeed an action between the plaintiff's lessor and the person 
admitted to dispute his title. But, in order to disembarrass it from 
all technicalities, it is regarded in form as the action of the nominal 
plaintiff.

If the plea of alien-born be a good plea in abatement to a real action, 
it is cause of gratulation that there is a remedy, whereby one, who has 
in law a right of entry, may regain his possession without being 
hindered by this plea. In this respect we feel the force of the 
observations made by Chief Justice Savage in delivering the opinion of 
the Court in the case before cited of Bradstreet v. Supervisors, 13 
Wend., 546. "If an alien may take and hold real estate against every 
person but the State, he may do so, because, by his purchase, he has an 
estate in the property which the laws guarantee to him. It is his 
against other individuals; and if they attempt to turn him out or 
disturb his possession, the law will protect and defend him. But 
suppose that some person succeeds in turning him out by force or fraud 
shall he then be debarred from all redress for this greater wrong, by a 
plea that he is an alien friend? Shall the successful intruder be 
suffered to enjoy with impunity the fruits of his wrongful conduct?" 
Does the law give remedy as against a wrongdoer, who has but 
imperfectly executed his injurious purpose, but withhold redress if he 
carry it into full execution? But quitting these speculations in regard 
to the hardness of the doctrine, it cannot escape observation that, if 
established, it would furnish strong inducements to disturb the repose 
of society. Men without right, or shadow of right, would be tempted to 
intrude into possessions quietly held by persons against whom existed 
the objection of alienage; and these in turn would be stimulated to 
regain by every trick and artifice, the possessions so wrested from 
them; while the law would stand by, smiling upon the victor in this 
contest of force and fraud, ready to award to him the profits of the 
land, as a reward for his superior cunning and prowess.

In holding that the objection here set up cannot avail in an action of 
ejectment, either by way of a plea in abatement or a defense to the 
action, we have the satisfaction to find that our opinion has the 
sanction of several of the ablest Courts in the other States of the 
Union. 
 
PEB CURIAM.                                    Affirmed.

Cited: Trustees v. Chambers, 56 N. C., 263; Johnson v. Lumber Co., 144 
N. C., 720.

Source: NC Reports, Vol. 25, p 101

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