[Holmes et al. v. Patterson.]

does not appear that there was a serious price, there is no price. A price, says Pothier, which bears no proportion to the thing sold, is not a true price, as if a valuable tract of land be sold for a crown. Id. 20. But the defendant's counsel shows that a deed for value received is good. Jackson v. Alexander, 3 Johns. 484.

He further contends that, if the instrument under consideration be not evidence of a sale, it is of a donation. Pothier, Contrat de Vente, n. 16. The plaintiffs contend, that the donation, if any existed, was revoked by the death of the donor, before the acceptance of the donee. In the present case, it does not appear that there was any such acceptance; but we are of opinion that the instrument is valid, at least as a deed of gift, and that as there was such a deed, the donation is valid, although the donor died without having delivered either the deed or the property mentioned therein, if he did not make any other disposition of it. Quando ni la cosa ni la escritura fueren entregadas, si (el donante) muere y no ha dispuesto de ellas, tiena efecto la donacion a favor del que se expressa en la escritura. Fuero real, 3, 12, 10.

The district court erred in decreeing the delivery of the slave and offspring to the plaintiffs; and the judgment is therefore annulled, avoided and reversed; and it is ordered, that the defendant be quieted in the possession and enjoyment and property of the said negro Lucy and her offspring, and that he account for the balance of the estate, in the district court, and the costs of the appeal be borne by the appellees.

Sutton, for the plaintiff.

1. Baldwin, for the defendant.

Marshal Jun'r. and Wife v. Marshal Sen'r. and Wife. V. 695.

WHERE the testator left to his wife the enjoyment, jouissance, of all his estate, and as his children should come of age, she should pay to each the sum coming to him in equal shares, to be ascertained by an inventory and appraisement: Held, that the intention of the testator was that his wife should take his whole estate, on a fair and legal appraisement of it made at the time of taking possession of it, and gave her a legacy of the enjoyment or usufruct of the estate, that

[Marshal Jun'r. and Wife v. Marshal Sen'r. and Wife.]

is, of the interest which she would have been bound to pay had not this legacy been made her. If this legacy exceeded the disposable portion, or one fifth in this case, it is reducible. Case remanded with directions to ascertain if an appraisement was made at the taking possession-if not to ascertain the true value of the estate at that time.

Smeltzer and Wife v. Bouth.

V. 698.

THE 12th section of the act of 1813, c. 13, requires that at least three weeks' public notice be given of the sale of land for non-payment of taxes. The 15th sect. of the act of 1814, c. 21, provides that, before sale, collector shall give one month's public notice.

Held, that the neglect of the collector to advertise the sale in a newspaper does not affect it. If plaintiffs wish to claim the right of redemption, they must comply with the requisites of the 18th sect. relative thereto.

Phillips v. Rogers et al.

V. 700.

Aliens may inherit land in Louisiana.

APPEAL from the court of the sixth district.

MARTIN, J., delivered the opinion of the court.

The only question for the decision of this court is, whether an alien may inherit real estate in Louisiana.

It is first necessary to inquire whether he may hold real estate.
The defendant's counsel contends he may not.

VOL. I.-38

[Phillips v. Rogers et al.]

He relies on ff. 28, 5, 6, n, 2, id. 59, n. 4, to show that aliens could not at Rome; but this shows that they could not take by will. Non habet testamenti factionem activam vel passivam.

2. He next endeavors to show that the droit d'aubaine prevails in Spain. In this, he does not appear to have succeeded; but if he had, it would only show that an alien may not transfer property by will or succession.

3. The Spanish statutes are next relied on, to show that the sale, gift or alienation of cities, towns, castles, lands or hereditaments, hereditamientos, to an alien is prohibited.

The plaintiff's counsel contends, that the prohibition is confined to estates, to which some jurisdiction or civil or military power is annexed, and produces in favor of this position a legislative construction of these laws, which he finds in the Partidas and the Nueva Recopilacion and the Leyes de las Indias, Ordonmiento real and Autos Accordados.

Naturalisation may be obtained in Spain by acquiring an inheritance, por hereditamiento-Partida 4, 4, 2—by the acquisition, by purchase or donation, of real property, bienes ruices. Nueva Reco

pilacion. And foreigners are forbidden to trade to the Indies, unless they have acquired real property, of the value of four thousand ducats, by purchase or inheritance. Recopilacion de las leyes de las Indias.

Now, it is impossible to give effect to these laws, by which naturalisation may be acquired by an alien, unless the construction of the former laws, contended for by the plaintiff's counsel, be adopted. Is it not illusory, to say that a foreigner may obtain naturalisation by acquiring real estate, if he be not permitted to make the acquisition?

If the laws, quoted by the plaintiff's counsel, be attentively examined, the construction contended for will not appear a forced one. "We declare, that we do not intend to give or grant to any king, or other foreign person, out of our kingdom, any city, town, castle, place, land or inheritance, nor any island," &c. Nueva Recopilacion. "The donation is not valid to any stranger out of the realm, of any city, town or hereditament.”

"We forbid that any of our subjects or vassals should give, sell or exchange any city, town, castle, or hereditament, or island, of our kingdom, to any king, lord, or any other stranger, out of our kingdom, under the pain of our displeasure." Nueva Recopilacion.

The laws, which are offered as evidence of the legislative construction contended for, are positive. It is further contended that, if they do not show that the former ones are to be thus construed, these are impliedly repealed.

The legislator, authorising aliens to obtain naturalisation, by the acquisition of landed property, must necessarily authorise such an acquisition, and effectually repeal the laws which forbade it. Cum quid conceditur, conceditur id quod pervenitur ad illud.

If we are enabled to conclude that aliens can hold real estate in

[Phillips v. Rogers et al.]

Spain, it remains to be inquired whether they may acquire it by in

heritance.

Here it is proper to remark, that none of those prohibitive laws cited, affect, except by a remote construction, the right of acquiring real estate by inheritance.

Any person may be instituted as heir, who is not prohibited from being so. Partida 6, 3, 2.

In the fourth law of the same title, persons, who are incapacitated from inheriting, are enumerated, and aliens are not spoken of.

Persons, who may not make a will, are enumerated in Partida 6, 1, 13-aliens are not among them.

The third law of the same title provides, that peregrinos, pilgrims, may make their wills.

It would be idle to suppose, that the circumstance of a Spanish subject, going on a pilgrimage, in his own country, would require a positive law to authorise him to make a will. The inference is strong, that alien pilgrims are referred to.

The succeeding law makes it the duty of the bishop, or his vicar, to take care of the property of strangers and pilgrims, for their heirs; to write to them, thay they may come or send for such property; and if the heir neglects to come or send for it, it shall be employed in pious uses.

The Recopilacion de las leyes de las Indias has the following proviso: If he who died left a writing, in form of a testament, which is to be proved by witnesses, as being a stranger or peregrino, the cognisance of it belongs to the ordinary judges.

Hence we conclude, that the maxim of the Roman law, which denied to aliens testamenti factionem, activam vel passivam, does not prevail in Spain.

But the plaintiff's counsel shows that the viceroys of Spanish America and the audiences are directed, "in case persons with sufficient vouchers claim the estates of persons who died in the Indies, they may receive them, unless they be strangers; and that the king's subjects may not receive the estates of strangers." Recopilacion de las leyes de las Indias 2, 32, 44; and this is presented to us as proof that the principle prevails, at least in Spanish America.

By the 36th law of the same title, "testamentary executors, heirs and other retainers of goods of deceased persons, who, according to the will, are bound to deliver them, in whole or in part, to persons within these our kingdoms, are ordered, at the expiration of one year, to send whatever they may have collected to the casa de contratacion of Seville."

Not only aliens, but many of the Spanish subjects themselves, were excluded from the dominions of the king of Spain in America, and the property of those who, contrary to the prohibition, introduced themselves there was liable to confiscation. On the death of any individual in the American provinces, whose property was not claimed there, it was deemed proper to submit to the rights of alien claimants,

[Phillips v. Rogers et al.]

or of Spanish claimants, not resident on the spot, and even the claims of the colonists, to the estate of an alien, to a severe scrutiny in Europe. For this purpose, if the claimant resided in Spain, the estate was to be sent to casa de contratacion in Seville, where that scrutiny was to take place. But, if the deceased was an alien, then, if an alien claimed the estate, the cognisance of the claim was exclusively confined to the council of the Indies. Recopilacion de las leyes de las Indias 9, 37, 24. The colonial authorities, even the viceroys and audiences, were interdicted from interfering in such cases. We e see, therefore, nothing in these statutes that affects the present case.

By the 15th article of the instructions of governor Gayoso to the commandants, relating to the grant of lands, provides, that, in case of death, he (the grantee) may leave them (the premises) to his lawful heir, if he has any resident in the country; but, if he has no such heir in the country, they shall in no event go to an heir, who is not in the country, unless such heir shall resolve to come and live in it. 1 Laws of the United States, 543.

This condition, directed to attend the grant of land, is a strong presumption that there did not exist, in the knowledge of the governor, any principle of law which forbade aliens from acquiring land.

Nothing in the laws of Spain, or of her colonies, appears to us to exclude aliens from the inheritance of real estate.

Our own statute makes no distinction in the nature of property, in order to regulate the succession. Civil Code, 146, art. 9, 10. Nothing shows that aliens must be excluded from the acquisition of real or personal property, by will or succession, and are not capable to inherit either.

All free persons, even the minor, pupil, lunatic and idiot, may transmit their estate, ab intestat, and inherit from others. Slaves alone are incapable of either. Id. 158, art. 64.

Nothing appears to us to exclude aliens from the inheritance of real property; and we think that the district judge erred in refusing to the plaintiff the real property, left by his brother.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is ordered, that Thomas Phillips do recover the whole estate, real and personal, of Archibald Phillips, deceased, his brother; and, as Thomas Rogers was admitted as heir, the costs to be paid out of the succession.* Workman, for the plaintiff.

Porter, for the defendant.

* By the Louisiana Code it is provided, art. 1477, " Donations inter vivos and mortis causa may be made in favor of a stranger when the laws of his country do not prohibit similar dispositions from being made in favor of a citizen of this state," a policy borrowed from the Code Napoleon, art. 912.