state of Kansas (Laws 1893, chap. 109, §§ 1, 2, 26), | fendants below that if, under the provisions of containing a description of the property pur- the statute of 1893, there is any material change or chased and the amount of money paid by each impairment of the contract rights secured under purchaser, together with the amount of costs up to the mortgage, however slight, it is unconstitusaid date, and stating that, unless redemption is tional. But the claim is that the statute acts on made within eighteen months thereafter according the remedy only; that the plaintiff has under to law, the purchaser, or his heirs or his assigns, will that act a substantial remedy to enforce the probe entitled to a deed to the same; and that, upon the visions of his mortgage; and therefore that it is making and execution of such deed or deeds to constitutional, and was intended by the legislature such purchaser or purchasers, any of the defend- to apply to all contracts, whether made before or ants who may be in possession of said mortgaged after its passage. It is conceded "that the laws premises, or any person or persons holding posses- which subsist at the time and place of making the sion under, through, or by them, or either of them, contract and where it is to be performed, enter into since the commencement of this action, shall im- and form a part of it, as if they were expressly remediately surrender the possession of said premises ferred to or incorporated in its terms." United to such purchaser or purchasers, upon production States v. Quincy, 71 U. S. 4 Wall. 535, 18 L. ed. 403. of such sheriff's deed. That upon production of It has been ruled in Seibert v. United States, 122 U. such sheriff's deed to said mortgaged premises, if S. 284, 30 L. ed. 1161, "that the remedy subsisting in the parties in possession of the same neglect or re- a state when and where a contract is made and is fuse to surrender the possession of said premises to be performed is a part of its obligation, and to the purchaser at said sheriff's sale, a writ of as- that any subsequent law of the state which so afsistance shall be issued by the clerk of the district fects that remedy as substantially to impair and court, upon the application of the purchaser at said lessen the value of the contract is forbidden by the sheriff's sale, directing the sheriff of said county to Constitution, and is therefore void." Again in take possession of said mortgaged premises, and de- Louisiana v. New Orleans, 101 U. S. 203, 26 L. ed. 132, liver the same to said purchaser. It is hereby the court held: "The obligation of a contract is further ordered, adjudged, and decreed that, from impaired by such legislation as lessens the efficacy and after the execution of such deed or deeds, each of the remedy which the law in force at the time and all of the defendants herein named shall be for- they were made provided for enforcing them. ever barred, both at law and in equity, from any Whatever legislation lessens the efficacy of these right, title, lien, or interest in, to or against the means impairs the obligation. If it tend to postmortgaged premises herein before described." pone or retard the enforcement of the contract, Sections 1, 2, and 26 of said chapter 109 read as the obligation of the latter is to that extent follows: weakened. The Latin proverb Qui cito dat bis dat "Sec. 1. After sale by the sheriff of any real es- -'He who gives quickly gives twice'-has its countate on execution, special execution, or order of terpart in a maxim equally sound, Qui serius solvit, sale, he shall, if the real estate sold by him is not minus solvit,-He who pays too late, pays less. subject to redemption, at once execute a deed Any authorization of the postponement of paytherefor to the purchaser; but if the same is sub-ment, or of means by which such postponement ject to redemption, he shall execute to the pur- may be effected, is in conflict with the constituchaser a certificate containing a description of the tional inhibition." property and the amount of money paid by such purchaser, together with the amount of the costs up to said date, stating that unless redemption is made within eighteen months thereafter according to law, that the purchaser or his heirs or assigns will be entitled to a deed to the same: provided, that any contract in any mortgage or deed of trust waiving the right of redemption shall be null and void.

Whether the contract sued on is modified or affected by the act of 1893, if held to apply, is a test to the constitutionality of the act. If that act lessens the value of the mortgage or its security, it cannot operate upon such a contract in existence at the time of its passage. The act provides that the mortgagor shall have eighteen months from the date of sale to redeem; that a receiver can only be appointed in case of waste; that the income during the period for redemption, except what is necessato the owner or defendant in execution or the owner of the legal title. Under the express condition of the mortgage sued on, in case of default in the payment of the debt secured, the mortgagee is entitled "to have and receive all the rents and profits of the the mortgaged premises to apply upon his note or bond." Under the former law, a receiver could have been appointed to take possession of the mortgaged premises, collect the rents and profits thereof, and apply the same, less expenses, to the satisfaction of the debt. The act of 1893 deprives the mortgagee of this right, and therefore of a part of the security given by the very terms of his mortgage.

"Sec. 2. The defendant owner may redeem any real property sold under execution, special execu-ry to keep up repairs and prevent waste, shall go tion, or order of sale, at the amount sold for, together with interest, costs, and taxes, as provided for in this act, at any time within eighteen months from the day of sale as herein provided, and shall in the meantime be entitled to the possession of the property; but where the court or judge shall find that the lands and tenements have been abandoned, or are not occupied in good faith, the period of redemption for defendant owner shall be six months from the date of sale, and all junior lien holders shall be entitled to three months to redeem after the expiration of said six months."

"Sec. 26. The sheriff shall at once make a return of all sales made under this act to the court; and the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same and direct that the clerk make an entry upon the journal that the court finds that the sale has in all respects been made in conformity to law, and order that the sheriff make to the purchaser the certificate of sale or deed provided for in section 1 of this act."

To the judgment, decree, and order of the court directing the issuance of a certificate of purchase, under chapter 109, Laws 1893, J. B. Watkins, the plaintiff below, excepted, and brings the case here for review and reversal.

The question for our determination in this case is whether chapter 109, Laws 1893, relating to the sale and redemption of real estate, was intended by the legislature to operate retrospectively, so as to apply to mortgage contracts existing at and before its passage. Involved in this is the further question whether, if the act was intended to apply to such contracts, it violates article 1, § 10, of the Constitution of the United States, which ordains that "no state shall pass any law impairing the obligation of contracts." The contention on the part of the plaintiff is that chapter 109 was not intended by the legislature to apply to mortgage contracts entered into prior to its passage, and that, if such were the intention of the legislature the act is unconstitutional as to such contracts. It is admitted upon the part of the de

Again, the act carves out for the mortgagor or the owner of the mortgaged property an estate of several months, more than obtainable by him under the former law, with full right of possession, and without paying rents, profits, or taxes. Under the former law, after a foreclosure and sale of the mortgaged premises, the purchaser was given actual possession as soon as the sale was confirmed and the sheriff's deed issued. Thereafter the mortgagor or the owner had no possession, title, or right in any way to the premises. In the counties where the courts are almost continually in session, as Atchison, Shawnee, Sedgwick, and Wyandotte, and in other counties of the state where there are frequent sessions of the courts, a sheriff's deed genally issues in a few days after the sale. To contend that the actual possession of the mortgaged premises by the mortgagor or owner for any specific period of time, whether it be for six, twelve, or eighteen months, after a judicial sale, gives the same security to the mortgagee as the former law, which permitted the purchaser of the premises under a decretal sale to take possession as soon as the sale was confirmed and the sheriff's deed issued, is to claim that the possession of real estate is of no value whatever. As was forcibly observed by Allen, J., in Greenwood v. Butler, 52 Kan. 424, 22 L. R. A. 465: "It cannot be said that a sale of lands with a right of possession remaining in the judgment debtor for a year and a half thereafter is the

same thing as a sale with a right to immediate possession on confirmation of the sale. It is simply the carving out and taking away from the estate originally decreed to be sold another estate limited for a year and a half. It diminishes the value of the lands to be sold by just exactly the value of the tenure, rent free, for a year and a half. The fact that the judgment would still draw interest does not affect the question as to the value of the security to be sold for its satisfaction." In our opinion, the obligation of the morgage contract in this case is substantially impaired by the act of 1893, if that act operates upon contracts in existence at the date of its passage, as it injuriously affects the value of the mortgage security. The act, therefore, if applied to past contracts, is unconstitutional and void.

|

States, 97 U. S. 293, 24 L. ed. 920; Kring v. Missouri, 107 U. S. 233, 27 L. ed. 510; Butz v. Muscatine, 75 U. S. 8 Wall. 575, 19 L. ed. 490; Port of Mobile v. United States, 116 U. S. 305, 29 L. ed. 626; Curran v. Arkansas, 56 U. S. 15 How. 319, 14 L. ed. 712; Louisiana v. New Orleans, 102 U. S. 206, 26 L. ed. 133; Seibert v. United States, 122 U. S. 284, 30 L. ed. 1161; Edwards v. Kearzey, 96 U. S. 595, 24 L. ed. 793. As sustaining the constitutionality of chapter 109 to prior contracts, we are referred to Connecticut Mut. L. Ins. Co. v. Cushman, 108 U. S. 51, 27 L. ed. 648; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 36 L. ed. 925; Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 30 L. ed. 825; Curtis v. Whitney, 80 U. S. 13 Wall. 68, 20 L. ed. 513; Antoni v. Greenhow, 107 U. S. 769, 27 L. ed. 468. The cases mostly commented upon are Connecticut Mut. L. Ins. Co. v. Cushman, and We think this conclusion is fully supported by the Morley v. Lake Shore & M. S. R. Co. supra. In the great weight of authority, and especially by the de- Cushman Case, the action was between the purcisions of the Supreme Court of the United States, chaser of the mortgaged property at the decretal which are controlling in the interpretation of the sale and the party entitled to redemption. The provisions of the Federal Constitution. In Pounds mortgagee was not a party, or interested. The v. Rodgers, 52 Kan. 558, it was ruled that, "the sale court ruled that the Illinois statute for 1879, reducing of land for delinquent taxes, under the statute, con- the interest from 10 per cent to 8, was valid between stitutes a contract between the purchaser and the the purchaser of mortgaged premises and the party state, the terms of which are found in the law then entitled to redemption, although the mortgage was in force All matters relative to the sale and given before the passage of the statute. Mr. Jusconveyance of land for taxes under any prior statute tice Harlan, in delivering the opinion in that case, shall be fully completed according to the laws un- said among other things: "Certainly the obligation der which they originated, the same as if such laws of that contract was not impaired by the act of 1879, remained in force." In Bixby v. Bailey, 11 Kan. for it did not diminish the duty of the mortgagor 359, Brewer, J., speaking for the court, in referring to pay what he agreed to pay, or shorten the period to the redemption law of the 4th of June, 1861, ob- of payment, or interfere with or take away any served: "It is insisted that under the law in force remedy which the mortgagee had, by existing law, at the time of the decree and sale the debtor had for the enforcement of its contract. The statute in two years to redeem, and therefore the sheriff's force when the mortgage was executed, prescribing deed was void. The note and mortgage were exe- the rate of interest which the amount paid or bid cuted before the redemption law, and therefore un- by the purchaser should bear, as between him and affected by its provisions." He cited Bronson v. the party seeking to redeem, had no relation to the Kinzie, 42 U. S. 1 How. 311, 11 L. ed. 143. In Ogden v. obligation of the contract between the mortgagor Walters, 12 Kan. 283, Valentine, J., stated: "At the and the mortgagee. The mortgagor might, pertime said mortgage was executed (in 1858) there was haps, have claimed that his statutory right to reno law authorizing a redemption of land from a deem could not be burdened by an increased rate sheriff's sale, and the law of June 4, 1861(Comp. Laws, of interest beyond that prescribed by statute at the 769), cannot have a retrospective operation so as time he executed the mortgage. But, as to the to apply to said mortgage." In view of these ex- mortgagee, the obligation of the contract was fully pressions of this court delivered by such eminent met when it received what the mortgage and statand painstaking jurists as Brewer and Valentine, ute in force when the mortgage was executed, enand considering that section 1 of chapter 109 pro- titled it to demand." And after referring to Edvides for deeds to issue at once on sales of real es- wards v. Kearzey, 96 U. S. 595, 24 L. ed. 793, and other tate not subject to redemption, and for certificates prior decisions of the Supreme Court of the United to issue on sales subject to redemption, we think States, remarked: "These decisions clearly have no the legislature did not intend that the provisions of application to the case now before the court. The the act of 1893 should apply to mortgage contracts laws with reference to which the parties must be existing at the date of its passage. No statute, assumed to have contracted, when the mortgage however positive in its terms, is to be construed as was executed, were those which in their direct or designed to interfere with existing contracts, rights necessary legal operation controlled or affected the of action, or suits, and especially vested rights, un- obligations of such contract. We have seen that less the intention that it should so operate is ex- no reduction of the rate of interest, as between the pressly declared. And courts will apply new stat-purchaser of mortgaged property at decretal sale utes only to future cases, unless there is something and the party entitled to redeem, affected, or could in the very nature of the case, or in the language | possibly affect, the right of the insurance company of the new provision, which shows that they were to receive, or the duty of mortgagor to pay, the intended to have a retroactive operation. Potter's entire mortgage debt, with interest as stipulated in Dwarr. Stat. 75; Id. 162, 163, note. Sedgwick, in his the mortgage up to the decree of sale. And the rework on the Construction of Statutes and Consti-sult of the sale in this case shows that the company, tutions (2d ed.), after stating that the retrospective as mortgagor, has received all that it was entitled or retroactive statutes, independently of certain exceptions, are within the scope of the legislative authority, yet says that "such laws, as a general rule, are objectionable, and the judiciary will give all laws a prospective operation only, unless their language is so clear as not to be susceptible of any construction." Page 173. Again he says: "The courts refuse to give statutes a retroactive construction, unless the intention is so clear and positive as by no possibility to admit of any other construction.' Page 166. If the legislature intended the act to be retrospective in its operation so as to apply to prior mortgages, the following decisions of the Supreme Court of the United States, and the reasons given therein, are conclusive that the act is unconstitutional and void as to such contracts: Ogden v. Saunders, 25 U. S. 12 Wheat. 213, 327, 6 L. ed. 606, 610; Green v. Biddle, 21 U. S. 8 Wheat. 1-107, 5 L. ed. 547-573; Bronson v. Kinzie, 42 U. S. 1 How. 311, 11 L. ed. 143; McCracken v. Hayward, 43 U. S. 2 How. 608, 11 L. ed. 397; Gantly v. Ewing, 44 U. S. 3 How. 716, 11 L. ed. 798; Ex parte City Bank, 44 U. S. 328, 11 L. ed. 619; Clark v. Reyburn, 75 U. S. 8 Wall. 322, 19 L. ed. 356; Walker v. Whitehead, 83 U. S. 16 Wall. 314, 21 L. ed. 357; Howard v. Bugbee, 65 U. S. 24 How. 461, 16 L. ed. 753; Planters' Bank v. Sharp, 47 U. S. 6 How. 301, 12 L. ed. 447; Gunn v. Barry, 82 U. S. 15 Wall. 610, 21 L. ed. 212; Brine v. Hartford F. Ins. Co. 96 U.S. 627, 637, 24 L. ed. 858, 862; Memphis v. United

to demand."

In this case there is no showing that the mortgagee can or will receive all that he is entitled to demand under the decree complained of. If the plaintiff in this case had received the full amount of his mortgage, with interest and costs, he would not be here. In the Morley Case, supra, the court ruled that a state statute, reducing the rate of interest upon judgments obtained within the courts of the state, is not, when applied to one previous to its passage, in violation of section 1 of the 14th Amendment of the Constitution of the United States. Mr. Justice Shiras, in delivering the opinion, observed: "Interest on a principal sum may be stipulated for in the contract itself, either to run from the date of the contract until it matures, or until payment is made; and its payment in such a case is as much a part of the obligation of contract as the principal, and equally within the protection of the Constitution. But if the contract itself does not provide for interest, then, of course, interest does not accrue during the running of the contract, and whether, after maturity and a failure to pay, interest shall accrue, depends wholly on the law of the state, as declared by its statutes. If the state declares that, in case of the breach of a contract, interest shall accrue, such interest is in the nature of damages, and, as between the parties to the contract, such interest will continue to run until pay

ment, or until the owner of the cause of action | selling mortgaged property. But the act of 1893 elects to merge it into judgment. It is itself specifically provides that in some cases real contended on behalf of the plaintiff in error, as estate may be sold without redemption, and in stated above, that the judgment is itself a contract, other cases be sold subject to redemption; hence and includes within the scope of its obligation the the act does not command uniformity of procedduty to pay interest thereon. As we have seen, it ure. Laws 1893, chap. 109, § 1. Further, the sugis doubtless the duty of the defendant to pay the gestion of confusion of procedure in the courts interest that shall accrue on the judgment, if such could be used as effectively against the decision in interest be prescribed by statute, but such duty is Greenwood v. Butler, supra, as in this case. There created by the statute, and not by the agreement were many judgments rendered in this state before of the parties, and the judgment is not itself a con- the passage of chapter 109, foreclosing mortgages tract within the meaning of the constitutional pro- upon real estate, where the sales did not occur until vision invoked by the plaintiff in error. The most after the passage of the act. Yet this court held important elements of a contract are wanting. unanimously that the act had no retrospective. There is no aggregatio mentium. The defendant has operation as to judgments rendered before its passnot voluntarily assented or promised to pay. age. Therefore the argument concerning the conjudgment is in no seuse a contract or agreement fusion of procedure is one of degree only between between the parties.'" These cases, and the other judgments and mortgages existing prior to the United States cases referred to, to sustain the de- passage of the act. We think such an agument is cree of the trial court, are clearly distinguishable without substance. The judgment of the district from the Federal decisions cited by us against the court will be reversed, and the cause remanded, act of 1893, if it be given a retrospective operation. with direction to the court below to correct the Finally, it is suggested that, if chapter 109 is not decree complained of, and to order that, after sale retrospective, there will be great confusion in the and confirmation, a sheriff's deed shall issue accordcourts in the mode of procedure in foreclosing and ing to law.

A

NOTE.-Effect of state Constitutions and statutes | course of justice in the collection of debts heretoupon the question of inheritance by or from an alien.

I. United States statutes.

II. State Constitutions and statutes and their con

struction.

III. Decisions under the English statutes.

Upon the question of an alien's right to inherit, see note to Easton v. Huott, post,

(1895).

Upon the question of the effect of state Constitutions and statutes upon inheritance through an alien, see note to DeWolf v. Middleton (R. I.) post, 146 (1895).

The effect of treaties upon the right of an alien to inherit will form a separate note.

As to treaty guaranties to aliens, see note to Gandolf v. Hartman (C. C. S. D. Cal.) 16 L. R. A. 277 (1892).

Upon the question of the disability of aliens and the escheat of property, see note to American Mortg. Co. v. Tennille (Ga.) 12 L. R. A. 529 (1891), and brief in Toole v. Toole (N. Y.) 2 L. R. A. 465 (1889).

I. United States statutes.

By the act of Congress of March 3, 1887, chap. 340 (1 Sup. U. S. Rev. Stat. vol. 1, 1874, 1891, p. 556), "An Act to Restrict the Ownership of Real Estate in the Territories to American Citizens," etc., it is enacted that it shall be unlawful for any person or persons not citizens of the United States, or who have not lawfully declared their intention to become such citizens, or for any corporation not created by or under the laws of the United States, or of some state or territory of the United States, to hereafter acquire, hold, or own real estate so hereafter acquired, or any interest therein, in any of the territories of the United States or in the District of Columbia, except such as may be acquired by inheritance or in good faith in the ordinary

fore created: Provided, that the prohibition of this section shall not apply to cases in which the right to hold or dispose of lands in the United States is secured by existing treaties to the citizens or subjects of foreign countries, which rights, so far as they may exist by force of any such treaty, shall continue to exist so long as such treaties are in force, and no longer.

II. State Constitutions and statutes and their construction.

Alabama.

An act of the legislature rendering an alien capable of inheriting as if he were a citizen is a removal only of the defect or want of inheritable blood, but cannot by construction be so enlarged as to render a deceased alien capable of transmitting to such alien an inheritance. Congregational Church v. Morris, 8 Ala. 182.

A state statute waiving the right to escheat, and giving an alien a right to take from a deceased alien, makes him sole heir, although there may be others of the same relationship to the decedent, who, if citizens, would take as heirs along with such one. Ibid.

The Constitution of Alabama of 1875, in which it is declared that foreigners who are bona fide residents shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property as native-born citizens, forbade the legislature to make any discrimination against resident foreigners, but left the competency of the lawmaking power quite ample to conferring on nonresident aliens the same property rights as might be enjoyed by such resident foreigners or by individual or naturalized citizens. Nicrosi v. Phillipi, 91 Ala. 299, 307 (1890).

It has been held that such constitutional provision was a limitation merely on the otherwise

3. A statutory provision that an estate shall descend in equal parts to next of kin does not make the descent to collateral kindred immediate, so as to avoid the effect of alienage of ancestors through whom kinship is

traced.

(Craig and Baker, JJ., dissent.)

(January 15, 1895.)

Messrs. Prentiss, Montgomery, & Hall, for appellant:

The 'sisters and their descendants" are nonresident aliens, and as such are incapable of taking and holding real estate in this state because of our statute; therefore the estate descends as 46 intestate" estate to the heir at law or "next of kin" "capable of inheriting." Rev. Stat. 1893, Hurd's ed. chap. 6; 4 Kent,

APPEAL by plaintiff from a decree of the Com. p. 541; 7 Am. L. Rev. pp. 56, 57; 1 Jar

Superior Court for Cook County sustain-man, Wills, p. 311, and cases cited; 2 Redf. ing a demurrer to a complaint filed to obtain Wills, pp. 175, 176; Mills v. Newberry, 112 partition of the real estate of William Went, Ill. 123, 54 Am. Rep. 213; Wunderle v. Wundeceased. Affirmed. derle, 144 Ill. 40, 19 L. R. A. 84; Schultze v. Schultze, 144 Ill. 290, 19 L. R. A. 90.

The facts are stated in the opinion.

boundless power of the legislature in the premises, and not the grant of power in any sense. Ibid. The Alabama Code, § 1914, being § 2860 of the Code of 1876, provides that aliens, resident or nonresident, may take and hold property by purchase or descent or devise as native citizens. Ibid.

In Nicrosi v. Phillipi, supra, a wife died intestate without children or other descendants, possessed of real estate held to her sole and separate use, leaving her husband a natural-born citizen, and nonresident alien brother and sisters her surviving. It was held that under the above sections of the Code the brothers and sisters took the estate to the exclusion of her husband, whose marital rights had been excluded by the conveyance. California.

It has been held that Cal. Const. art. 1, § 17, does not inhibit state legislation with respect to the right of an alien to inherit. Re Billings' Estate, 65 Cal. 593 (1884).

Foreigners who are bona fide residents are entitled to the same rights of property under the Constitution of the state of California as native-born citizens. Mitchell v. Hagood, 6 Cal. 148 (1856); Siemssen v. Bofer, 6 Cal. 250 (1856); Norris v. Hoyt, 18 Cal. 217 (1861).

The state Constitutions expressly prohibited nonresident aliens from inheriting. Siemssen v. Bofer, and Norris v. Hoyt, supra.

| spect to the inheritance of real estate, but only affects or removes the disability of bona fide resident aliens.

In State v. Rogers, 13 Cal. 160 (1859), the court held that if Cal. Const. art. 1, § 17, was to secure a certain protection to such resident aliens as might be in the state at the time of the descent cast, yet it was not designed to comprehend all the law in respect to the same, and further that the legislature could not abridge the privilege, but it was not disabled from extending it or adding other privileges. an alien being secured by the Constitution in that one privilege, state legislation, in so far as it did not conflict with any constitutional restriction, securing as many more privileges as it chose to give to aliens.

of the legislature of California of April 19, 1856, relIn the above case the constitutionality of the act ative to escheated estates, was involved. Under $1 of such act, aliens were entitled to hold by inheritance real and personal estate as though they were native-born citizens of the state or of the United States, except that no nonresident foreigner could hold such estate within the limits of the state five years after the time when he inherited the same, and in case of his not appearing or claiming his estate within such period then the same was to be sold upon information of the attorney general and the proceeds deposited in the treasury of the state for the benefit of such nonresident alien, or

time within five years thereafter, upon production of satisfactory evidence that they were the legal heirs to, and entitled to inherit, such estate; and if they did not so appear and claim, and produce such evidence within the extended term of five

the credit of the school fund. The property was claimed by the state upon the ground that the same escheated to the state as the intestate died seised, without heirs capable of inheriting, and the defendants demurred on the ground that no cause of action had accrued to the state, for the reason that the five years had not elapsed since they inherited. The court held the act was constitutional, and that the statute denied the present right of the state to take the property, and that it was a good answer to one in possession to show such want of power in the state.

In Farrell v. Enright, 12 Cal. 450 (1859), the intes-his legal representatives, to be paid to them at any tate, a resident of the state, left surviving him neither wife nor descendants nor parent, and only one brother, the defendant, and one sister, one of the plaintiffs. The brother was a resident of the state, but the sister and her husband, the plaintiffs in the action, were both aliens. Letters of admin-years, the same became state property, placed to istration were taken out, and under the probate proceedings the real estate was sold to a purchaser who conveyed to the defendant. Part of such real estate involved in the action had been in possession of the defendant ever since intestate's death. The plaintiffs, who had become residents of California, brought action to establish the sister's title to half the property as coheir with her resident brother. The court held that the sister had no claim, as she was not, at the time of the descent cast, within the terms of Cal. Const. art. 1, § 17, which provides that "foreigners who are or may hereafter become bona fide residents of this state shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property as native-born citizens," and that therefore the subsequent residence of such sister did not retroact so as to confer upon her any right under such section to inherit any portion of the real estate of which her deceased brother died possessed.

In the above case the common law had been adopted in the state of California at the time of the intestate's death, and there was then no statute changing the doctrine. Cal. Const. art. 1, § 17, does not alter the position of nonresident aliens in re

In the above case it was contended that Cal. Const. art. 1, § 17, was restrictive, as well as enabling; that its terms excluded any other rights or privileges to aliens than those given. But the court held such contention was erroneous, as the Constitution was not a grant of power or an enabling act to the legislature, but a limitation on the general powers of a legislative character, and restrained only so far as the restriction appeared, either by express terms or by necessary inference, the object of the provision being to secure a certain protection to such resident aliens as might be in the state at the time of the descent, the alien being secured by the Con

While complainant traces his relationship | alien, the statute casts the estate directly upon with William Went through aliens, still there can be no doubt but that the statute of descents causes the estate to descend immediately from William Went, deceased, to appellant. "The next of kin" takes immediately from the intestate, and not immediately through his alien ancestors. The statute is very plain. The language with reference to this particular question is as follows: "Such estate shall descend in equal parts to the next of kin to the intestate."

|

The court in considering the above sections of the Code, in Billings' Estate v. Hauver, 65 Cal. 593 (1884), So, under Cal. Civ. Code, § 672, the court held that considered that the word "take," as used in § 671, such section did not mean that a nonresident must was broad enough to include the taking by descent necessarily appear in person, the manifest object of as well as by purchase, and as used to indicate the the provision of the Codes touching such matter betaking or acquisition of property in either of the ing to give to nonresident aliens substantially the modes above mentioned, and as not confined to same rights to the property of a deceased relative as the acquisition by purchase; and further, that the were secured to resident aliens by the Constitution, taking of property was not confined to an alien re- and that therefore a nonresident alien and his assiding in the state, § 671 clearly extending the right signee had the same rights as a resident alien and to all aliens whether resident or nonresident of the his assignee, and further, that a nonresident apstate, the following section confirming such inter-peared, whether he did so in person or by attorney