Tucker v. Atlantic Coast Lumber Co.

Sept. 10, 1907. After a careful consideration of the petition herein, the Court is satisfied that no material question of law or of fact has either been overlooked or disregarded:

It is therefore ordered that the petition for rehearing be dismissed, and that the order heretofore granted staying the remittitur be revoked. *Page 143

Whatever possible doubt the courts of this State may have left as to the validity of titles to land or contracts concerning land *Page 141 derived by citizens from aliens before office found is settled by the statute law of the State.

The Constitution, art. III, sec. 35, provides: "It shall be the duty of the General Assembly to enact laws limiting the number of acres of land which any alien or corporation controlled by aliens may own in this State."

In carrying out this mandate of the Constitution, the General Assembly passed the following statute as section 1795 of Civil Code: "No alien or corporation controlled by aliens, either in his or its own right, or as trustees, cestui quetrust or agent, shall own or control, within the limits of this State, more than five hundred acres of land: Provided, This section shall not apply to land purchased under proceedings either by action or power of sale, to foreclose any mortgage hereafter acquired by any alien or corporation controlled by aliens, purchasing the same, but in such case such alien or corporation controlled by aliens, shall not be entitled to hold such excess of land more than five years, without sale of same, unless the Comptroller General shall certify that a sale during that time would be detrimental to the interest of such alien or corporation controlled by aliens, in which case the said alien or corporation controlled by aliens may hold the land for five years longer upon the same condition. Nothing in this section shall apply to lands already owned or controlled by the persons or corporations referred to in this section nor to lands already mortgaged to such persons or corporations."

Before the adoption of the constitutional provision of 1895, and before the enactment of the statute just quoted, the law of the State on this subject was embodied in the statute enacted in 1872, which provided: "That real and personal property, of every description, may be taken, acquired, held and disposed of by an alien, in the same manner, and in all respects, as by a natural born citizen; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in *Page 142 the same manner, in all respects as through, from, or in succession to a natural born citizen."

In the Code of 1902, containing section 1795, above quoted, the act of 1872 was re-enacted as section 2360, in the following words, the only change from the original statute being the insertion of the words we have placed in brackets: "Real and personal property of every description may be taken, acquired, held, and disposed of by an alien, [subject to the provisions of section 1795] in the same manner, in all respects, as by a natural born citizen; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner, in all respects, as through, from or in succession to a natural born citizen." Unless in conflict with the Constitution, both sections 1795 and 2360 must be given full effect.

The Constitution and section 1795 of Civil Code taken together cannot be held to mean anything more than that the State may take from an alien any land held by him in excess of five hundred acres, and that the courts will not aid an alien to recover more than five hundred acres. The provision of section 2360, that title to real and personal property of any description may be derived from or through an alien, therefore, is not inconsistent with the Constitution, or with section 1795, and must be given full effect. For this reason, in addition to those stated in the Circuit decree, the judgment should be affirmed.

September 10, 1907. The opinion of the Court was delivered by The facts of this case are set out in the decree of his Honor, the Circuit Judge, which is affirmed for the reasons therein stated.

We, however, desire to correct an error (which does not affect the result) wherein the Circuit Judge states that the case of Groves v. Gordon, 3 Brev., 245, is later than the case of Meeks v. Richborough, 1 Mill, 412. The decision in the former was rendered in 1812, while the latter was not filed till 1817.