Superior Court of North Carolina, 1802

Den, on the Demise of Stringer v. Philips

Superior Court of North Carolina · Decided January 5, 1802 · Johniton

3 N.C. 158

Counsel

Slade objected to the plaintiff's recovery; first, because here was a condition precedent, and it is not proved that Ralph claimed within ten years after the death of the mother; therefore, the estate never vested in him. Secondly, Thomas became an alien, and was so at the Declaration of Independence, and could not transmit his lands by descent to the lessor. Gaston, e contra: Those who were not born aliens could not become so by a separation of empire; and, therefore, Thomas held his lands notwithstanding the separation, and could transmit them by descent. (159) Secondly, the claiming within ten years was not a condition precedent, but a conditional limitation, or a condition subsequent, which if not performed, the heir might enter. Here he did not enter after the ten years, though he had sold to Phillips. The estate vested immediately on the death of the testator, for the condition was performable by his representative or heirs, which proves the estate vested; otherwise, it could not descend to the heirs.

Opinion of the Court

Johniton, Judge.

The twenty-sixth article of our constitution declares all the lands within the bounds of this state to he-long to the collective body of the people ; making exceptions in favor of those who had already obtained grants from the king or lords proprietors ; which exceptions extend onlv to those who were parties to that instrument — the freemen of Korth-Carolma. AU others are out oí the exceptions, consequently all British subjects, and no one who was then a British subject had title to any lands within this state after that period. It will be said, why then confiscate the lands of British subjects? I answer, the confiscation acts considered that some who were then British subjects, might be willing to become citisens, and to join their efforts for the common defence. The Assembly meant to retain, and actually reserved the power of restoring to such the rights* which to them once belonged., if within the limited time they would apply for that purpose; and with respect to such as did net apply within time, it was proper, aacl indeed necessary, to appropriate their estates to the common defence ; the mode of doing which was. pointed out by those acts, without which the property would have remained unused.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.