limitation. In the case of Curran v. State of Arkansas, 15 How. 307, the Supreme Court of the United States holds that the assets of an insolvent banking corporation "are a fund for the payment of its debts." If they are held by the corporation itself, and so invested as to be the subject of legal process, they may be levied on by such process. If they have been distributed among stockholders or gone into the hands of other than bona fide creditors or purchasers, leaving debts of the corporation unpaid, such holders take the property charged with the trust in favor of the creditors, which a court of equity will enforce and compel the application of the property to the satisfaction of their debts." The same principle has been held in Drury v. Cross, 7 Wall. 299. In what cases where the subject is uncontrolled by legislation can such preference or priority be legally given by a corporation? Under two circumstances. Undoubtedly a corporation which is solvent, if not forbidden by its charter, may mortgage its property to secure the performance of obligations assumed before or at the time of the execution of the mortgage. So a mortgage executed by a corporation whose debts exceed its assets to secure a liability incurred by it or on its behalf, will be sustained if it appears to have been given in good faith to keep the corporation upon its feet and enable it to continue the prosecution of its business. The court therefore laid down the above proposition that a solvent corporation may mortgage its property to secure the performance of an obligation assumed before or at the time of the execution

of the mortgage if it is not forbidden by its charter or by general statute. But an insolvent corporation having no expectation of continuing business and recognizing its financial embarrassments as too serious to be overcome, cannot mortgage its property to secure a debt though previously incurred by one of its directors or in a general assignment of all of its property by which a preference is given.

In Pim v. City of St. Louis, Supreme Court of Missouri, it was held that, where adverse possession begins in the life-time of the ancestor, the statute continues to run against an heir who is a feme covert at the time of the ancestor's death.

§ 1. Introductory.-At common law all natural persons born within the dominion of the crown of England were capable of holding freehold estates; unless they were attainted of treason or felony, or had incurred the penalty of the præmunire, for in these cases they were considered as civilly dead, and for that reason incapable of possessing any real property.(1) In this country there is no exception to the right to hold real estate, except that in some States arising from alienage(2) at common law even

(1) See Bancroft v. Consen, 95 Mass. 50; Huss v. Stevens, 51 Penn. St. 282; Hileman v. Bouslaugh,

13 id. 344; S. C., 53 Am. Dec. 474; Harmon v. James, 7 Smed. & M. 111; S. C., 45 Am. Dec. 296; Parker v. Stuckert, 2 Miles (Penn.), 278.

(2) See Apthorp v. Backus, 1 Kirby (Conn.), 407; S. C., 1 Am. Dec. 26; Fox v. Southack, 12 Mass. 143; Montgomery v. Dorion, 7 N. H. 475, 480.

an alien may take an estate by the act of the parties, as by purchase or devise, (1) and hold the same against all the world except the State;(2) nor can he be divested by the State, until after a formal | proceedings on information filed for that purpose; (3) and until this is done he may take hold, sell and convey, and some courts even go so far as to hoid that he may devise the lands he has possession of and pass a good title thereto. (4) But the general rule is that upon the death of the alien in possession of real property, although he may leave heirs who would be capable of taking it if he were a citizen, the land escheats.(5) This was according to the common rule preventing aliens from taking real estate by descent, or by operation of law in any respect. (6)

(1) See Wadsworth v. Wadsworth, 12 N. Y. 376; Gouverneur's Heirs v. Robertson, 24 U. S. 332; bk. 6 (L. ed), 188; Fairfax's Devisee v. Hunter's Lessee 11 U. S. 603, 619; bk. 3 (L.ed.), 453, 458; Co. Litt. 2. (2) Goodrich v. Russel, 42 N. Y. 376; Wadsworth v. Wadsworth, 12 id. 376. See Fox v. Southack, 12 Mass. 143; Gouverneur's Heirs v. Robertson, 24 U. S. 322; bk. 6 (L. ed.), 488; Fairfax's Devisee v. Hunter's Lessee, 11 U. S. 603, 619; bk. 3 (L. ed.), 453, 458.

(3) People v. Folson, 4 Cal. 373; Halstead v. Board Commissioners of Lake, 56 Ind. 363; Elmondorff v. Carmichael, 3 Litt. 72; S. C., 14 Am. Dec. 86; Norris v. Hoyt, 18 Cal. 217; Goodrich v. Russel, 42 N. Y. 376; Heeney v. Brooklyn Society, 33 Barb. 360; Jackson v. Adams, 7 Wend. 367. "Office found" is the technical name of the former proceedings referred to. Moars v. White, 5 Johns. Ch. 360, 365; Vermont v. Boston R. Co., 25 Vt. 433; Cross v. De Valle, 68 U. S. 5; S. C., bk. 17 (L. ed.), 515; 3 Bl. Com. 258.

(4) Ramires v. Kent, 2 Cal. 558, 560; see Murray v. Kelly, 27 Ind. 42; State v. Beackmo, 8 Blackf. (Ind.) 246; Greenheld v. Stanforth, 21 Iowa, 595; Purzcell v. Smidt, 21 id. 540; McCreery v. Allender, 4 Harr. & McH. (Md.) 409, 412; Scanlan v. Wright, 30 Mass. 523, 529; Fox v. Southack, 12 id. 143; Sheafe v. O'Neil, 1 id. 256; Montgomery v. Dovion,

7 N. H. 475, 480.

(5) Slater v. Nason, 32 Mass. 345, 349; Maynard v. Maynard, 36 Hun, 227, 230; Moars v. White, 6 Johns. Ch. 360, 365; Rubeck v. Gardner, 7 Watts, 455, 458.

(6) Montgomery v. Dovion, 7 N. H. 475, 480; People v. Conklin, 2 Hill, 67, 69; Blight's Lessee v. Rochester, 20 U. S. 535, 544; bk. 5 (L. ed.), 516; Dawson v. Godfrey, 8 U. S. 321, 322; bk. 2 (L. ed.), 634; Moars v. White, 6 Johns. Ch. 360, 365; Marshall v. Conrad, 5 Call. 364, 402; Orr v. Hodgson, | 17 U. S. 453; bk. 4 (L. ed.), 402. Compare Rhien v. Robbins, 20 Ia. 45.

§ 2. Aliens holding land.—At common law all persons born in a strange country, under the obedience to a strange prince, and out of the lineage of the King, were incapable of taking or holding freehold estate for their own benefit, unless they were naturalized by act of Parliament or made citizens by letters-patent.(7) Blackstone says, that though an alien may take real estate by purchase, yet he cannot by descent, by dower or by the curtesy, (8) which, are the acts of the law(9) for the law giveth the alien nothing. Though an alien may purchase land or take it by devise, yet he is exposed to the danger of being divested of the fee and of having the land forfeited to the State upon an inquest of office found. (10)

In this country an alien cannot take lands by act of law or by descent nor transmit them to others as his heirs, by the common law, (11) for he has no inheritable blood, (12) but a great change has taken

(7) State v. Beackmo, 8 Blackf. 246; 1 Inst. 2b. (8) See post, § 23. (9) 2 Bl. Com. 249.

(10) 2 Kent's Com. (13th ed.) 53.

(11) Siemssen v. Bofer, 6 Cal. 250; Huddleston v. Lazenby, 1 Ind. 234; Doe v. Lazenby, 1 Smith, 203, 234; Greenheld v. Stanforth, 21 Iowa, 595; Purzcell v. Smidt, id. 540; Rhien v. Robbins, 20 id. 45; Stemple v. Herminghouser, 3 id. 408; Yeaker v. Yeaker, 4 Metc. 33; White v. White, 2 id. 185; Farrar v. Dean, 24 Mo. 16; Marx v. McGlynn, 88 N. Y. 358; Heeney v. Brooklyn Society, 33 Barb. 360; Beck v. McGillis, 9 id. 35; Brown v. Sprague, 5 Den. 545; Moars v. White, 6 Johns. Ch. 360, 365; Jackson v. Lunn, 3 Johns. Cas. 109; Copeland v. Sauls, 1 Jones (N. C.), L. 70; Sellegast v. Schrimpf, 35 Tex. 323; Heirs of Clay v. Clay, 26 id. 24, 84; Hardie v. Deleon, 5 id. 211; State v. Boston C. M. R. Co., 25 Vt. 433; Sullivan v. Burnett, 105 U. S. 334; bk. 26 (L. ed.), 1124; Orr v. Hodgson, 17 U. S. 453; bk. 4 (L. ed.); Cross v. De Valle, 1 Cliff C. C. 282; Hammekin v. Clayton, 2 Woods C. C. 336. Foreigners can hold property in the territories, and may inherit it in the absence of legislation upon this subject. People v. Folsom, 5 Cal. 373. See, also, Beard v. Federy, 70 U. S. 478; bk. 18 (L. ed.), 88. The law existing at the time of descent cast governs the right of aliens to inherit realty. Pilla v. German School Assoc., 23 Fed. Rep. 700.

(12) Elmendorff v. Carmichael, 3 Litt. 472; S. C., 14 Am. Dec. 86; Monroe v. Merchant, 28 N. Y. 915; McCarthy v. Marsh, 5 id. 263, 274; McGregor v. Comstock, 3 id. 408, 414; Moaers v. White, 6 Johns. Ch. 360, 365; Orser v. Hoag, 3 Hill, 79; People v. Conklin, 2 id. 71; Redpath v. Rich, 3 Sandf. 79, 81; Lynch v. Clarke, 1 Sandf. Ch. 583; Jackson v. Fitz Simmons, 10 Wend. 9; S. C., 24 Am. Dec. 198; Orr v. Hodgson, 17 U. S. 453; bk. 4 (L. ed.), 613.

York, (1) Oregon, (4) South

North Carolina, (2)

Pennsylvania, (5) Rhode

Carolina, (7)

der, 41 id. 397; Van Cortland v. Laidley, 34 N. Y. St. Rep. 585; Re Beck's Estate, 31 id. 965; Wright v. Saddler, 20 N. Y. 320; Dusenberry v. Dawson, 16 N. Y. Sup. Ct. 511; Ettenheimer v. Hefferman, 66 Barb. 374; Heeney v. Brooklyn Society, 33 id. 360; Watson v. Donnelly, 28 id. 653; Parish v. Ward, 28 id. 328; Brown v. Sprague, 5 Den. 545; Currin v. Finn, 3 id. 229; Matter of Leefe, 4 Edw. Ch. 395; Halsey v. Beer, 52 Hun, 366; S. C., 24 N. Y. St. Rep. 713; 5 N. Y. Supp. 334; Kull v. Kull, 37 Hun, 476; McCarthy v. Perry, 7 Lans. 326; Duke of Cumberland v. Graves, 7 N. Y. 305; S. C., 9 Barb. 595; McCarthy v. March, 5 N. Y. 263. (2) N. C. Code, 1883, § 7.

(3) Ohio Rev. St., 1880, § 4173.

(4) Oregon Code, 1887, p. 1352, § 4173.

(5) Bright. Prud. Dig., 1883, p. 84 et seq. Alien friends, by this statute, may hold real estate not exceeding five thousand acres in extent. Alien enemies having declared their intention to become citizens, are allowed to hold lands not exceeding two hundred acres in quantity, nor $2,000 in value. (6) R. I. Pub. St., 1882, p. 442, § 6.

is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to regard to the peace of society and a desire to protect the individual from arbitrary aggression.

§ 5. Same-Same-State regulations.-The question as to the rights of a non-resident alien to hold property both at common law and under the civil law, is a matter between the alien and the government, and cannot be called in question in a collateral proceeding between individuals. (14) Common law disabilities attached to alienage in respect to acquiring, holding and inheriting lands have been removed by statute to a great extent in the various States.

§ 6. Non-resident aliens - Iowa doctrine.-Under the statutes of Iowa, a non-resident alien can inherit real estate, only when devised to him by will, and provided he will become a resident of the State subsequent to the date of such devise. (15) A "non-resident alien" whose widow, under Iowa Code, (16) "shall be entitled to the same rights in the property of her husband as a resident, except as against a purchaser," means one who resides outside the State.(17)

have had two years' residence in the State, and have resided here at the time of decedent's death.(18)

(8) Tenn. Code, 1884, § 2804 et seq. See Starks v. Traynor, 11 Humph. 292. Emmett v. Emmett, 14 Lea. 369. The Tennessee act of 1809, chapter 53, provides that, where any person shall die intestate and without issue, his estate shall descend to the next of kin to the decedent, resident in the United States, to the exclusion of aliens related to the decedent in a nearer degree. It results from this statute that, contrary to the course of the common law, the course of descent is not broken or changed by the alienage of the ancestor of the next resident of kin, but that such next of kin shall inherit just as if such alien ancestor had been a resident or naturalized citizen, and had died. Starks v. Traynor, 11 Humph. 292.

(9) Tex. Rev. St., 1897, art. 1658. Under this statute property must be claimed within nine years. See Stettegast v. Schrimpf, 35 Tex. 323; Hanrick v. Patrick, 119 U. S. 156; bk. 30 (L. ed.) 396. The Texas Act of January 28, 1840, § 14, regulating descents, and its re-enactment March 8, 1848 (Pasch. Dig., art. 44), demonstrate that the rule of the common law, which disables an alien from casting descent on an alien, has never been in force in Texas. Stettegast v. Schrimpf, 35 Tex. 323.

(10) Va. Code, 1887, § 43. See Foxwell v. Crad-, dock, 1 Patt. & H. (Va.) 250.

(11) W. Va. Code, 1887, chap. 70, §§ 1 and 2.
(12) Wis. Rev. St. 1878, § 2220.

(13) 24 U. S. 332, 356; bk. 6 (L. ed.), 488, 494.
(14) Racouillat v. Sansevain, 32 Cal. 376.
(15) Krigan v. Kinney, 15 Iowa, 242.
(16) § 2442.

(17) Re Gill's Estate, 79 Iowa, 296; S. C., 44 N. W. Rep. 553; 9 L. R. A.

(18) White v. White, 2 Metc. 185.

The Act of March 21, 1861, "to allow non-resident aliens who are heirs and devisees to hold and convey real estate," does not repeal, nor is it in conflict with the Rev. St., chap. 15, art. 3, § 1, but is merely cumulative. Nor is that act repealed, either in terms or effect, by that of March 9, 1867.(1) Where an alien becomes a citizen of Kentucky and dies intestate and childless, his sister, an alien and resident of France, may take by descent his real estate under the limitations prescribed in the act of March 21, 1861, subject to the widow's right to a homestead exemption or dower. (2)

§ 8. Same-New York statute.-Subsequently to the statute of 1825, in New York, aliens could not take lands by purchase, without complying with the provisions of that act. (3) Under the Revised Statutes of New York an alien can take land by purchase, and in case of lands which under those statutes would escheat to the State, the attorneygeneral alone can take advantage of it.(4)

§ 9. Children of resident aliens-New York statute. -By New York Laws of 1845, chap. 115, §§ 1, 10, the children of a resident alien inherit his land at his death, although themselves non-resident aliens. The title of such of them as are males of full age is defeasible by the State unless, before the consummation of proceedings instituted for that purpose, they file depositions with the secretary of State of their intention to become citizens.(5)

§ 10. Same-Devisee born after death of alien.-It is said by the Supreme Court in the recent case of Van Courtland v. Laidley, (6) that the disability created by the New York Revised Statutes(7) providing that every devise of any interest in realty to one who is an alien at the time of testator's death shall be void, and, the interest so devised shall pass to the heirs or residuary estate, does not apply to alien devisees born after the death of the testator; and such devises to whom was devised the remainder of lands devised for life can take under such devise and hold as against the heirs at law, independent of the provisions of the statute.

(1) Eustache v. Rodaquest (1874), 11 Bush. 42. (2) Eustache v. Rodaquest (1874), 11 Bush. 42. (3) Currin v. Finn, 3 Den. 229.

(4) Matter of Leefe, 4 Edw. Ch. 395.
(5) Goodrich v. Russel, 42 N. Y. 376.
(6) 32 N. Y. St. Rep. 585.

(7) 2 N. Y. Rev. St. (8th ed.) 57, § 4.

(8) Heeney v. Brooklyn Society, 33 Barb. 360.

in Indiana that the term "alien " applies to one not a citizen of the State.(9)

§ 13. Same-Texas rule.-A different rule, however, would seem to prevail in Texas for it is said there that upon the annexation of Texas to the Union, a citizen of another State ceased to be an alien; and that a conveyance made to him while an alien then became indefeasible. (10) After a foreigner by birth has duly declared his intention for the purpose of being naturalized as a citizen, he is invested under the laws of Texas, with all the rights of citizenship except the elective franchise; and therefore he could acquire real estate by purchase, and on his death, could transmit it by descent to his children. Settegast v. Schrimpf, 35 Tex. 33.

§ 14. Alien beneficiaries of trust.-Wherever the common law doctrine prevails forbidding aliens from acquiring real estate for an absolute right, they can be made beneficiaries and hold equitable interest in a trust in their favor; but this does not extend to trusts in personal property.(11)

§ 15. Same-Bequest converted into money. -Consequently a bequest of land to an alien converted into money by sale is valid, although a demise of the land is void. (12)

§ 16. Same-Secret trust voidable.-Where by the laws of a State aliens are prohibited from acquiring and holding real property, a deed made by A. to B. upon a secret trust for C. who is a foreigner, A. having no knowledge of the trust, is not void; the trust only is void. (13)

§ 17. Defeasible estate of alien.-In Alabama under the present statute, the defeasible estate of an alien, in lands purchased by him, is perfected by his becoming a naturalized citizen before office found. (14) But the statute of Alabama, giving an alien woman the right to inherit from her uncle, also an alien, in the same manner as if he, her mother and herself were citizens, does not give the capacity of inheritance to other relatives, who are also aliens.(15)

§ 18. Same-California Constitution and Code.The California Constitution does not prohibit the Legislature from conferring upon non-resident for

(9) McDonel v. State, 90 Ind. 320.

(10) Baker v. Westcott, 73 Tex. 123; 8. C., 11 S. W. Rep. 157.

(11) See Atkins v. Kron, 5 Ired. Eq. 207; Leggett v. Dubois, 5 Paige Ch. 114; Hubbard v. Goodwin, 3 Leigh, 492; Taylor v. Benham, 46 U. S. 233; bk. 12 (L. ed.), 130.

(12) See Barante v. Gott, 6 Barb. 497; Anstice v. Brown, 6 Paige Ch. 448; Craig v. Leslie, 16 U. S. 563; bk. 4 L. ed.), 460.

(13) Hammekin v. Clayton, 2 Woods C. C. 336. (14) Harley v. State, 40 Ala. 698.

(15) Congregational Church v. Morris, 8 Ala. 182.