majority">Adams, Judge,

delivered the opinion of the court.

This was a proceeding under the statute of escheats, to have a certain lot of ground in the town of Perryville, in Perry county, declared the property of the State.

The petition alleges that Bartholomew Murphy was the last person lawfully seized of said lot; that at the time of his death he was an alien, and left no heirs at his death; that he died about the year 1848; that defendant Killian claims said estate and is in possession by his tenant Grebe. There is no allegation in the petition that Murphy died without devising the lot in dispute.

*82The defendant denies all the material allegations of the petition and sets up a former adjudication which was had after the death of Murphy’s wife, who was alleged to have been at that time the last person seized. The court declared that this former adjudication, to which the present defendant Killian was a party defendant, was a bar to this suit, and gave judgment for the defendant.

I am inclined to think, from the record in this case, that the former adjudication was a bar. But without examining this question minutely, I am of the opinion that the judgment in this case was for the right party in any aspect of the case.

The petition does not state facts sufficient to constitute a cause of action. Ever since 1825, and perhaps before that time, an alien might hold land in this State, ,and dispose of the same, who had declared his intention of becoming a citizen of the United States by taking the necessary oaths, etc. (See R. S. 1825, p. 128.) There is no allegation in the petition that Murphy had not declared his intention to become a citizen when he received the conveyance of the lot. Nor is there any allegation that he had not devised the lot at the time of his death (1848). It will be observed that he took the conveyance in 1828, and at this time, if he was capable of holding the lot — and we must presume he was, in the absence of an allegation to the contrary in the petition — it could not escheat to the State unless he died intestate as to the lot. (See R. S. 1825, p. 856.) No such allegation is made in the petition. Under the pleadings in this case I am satisfied the judgment was for the right party.

Judgment affirmed.

Judge Wagner concurs. Judge Bliss absent.

Citation profile

How this case has been treated — in progress