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that the former denotes a holding of some superior by service of some kind, and the latter a holding free from any rent or service. They are the opposites of each other.
On the settạement of this country by emigrants from England, such parts of the common law, and statute law of that country, as were åpplicable to our circumstances, were in general adopted by the
colonies. But the feudal system was never adopted; though many :- of the terms and phrases, having their origin in that system, were :.: incorporated into our laws, and were frequently so used in our con
veyances. They are still used, though generally in a different or modified sense, from their original meaning. A brief sketch of the feudal system, and of the ancient and modern English tenures, will be found in the first title of Cruise's Digest, in Blackstone's Commentaries, and in Kent's Commentaries; but it is not deemed necessary, for the purposes of this treatise, to enlarge upon the subject.
Tenure, in its appropriate sense, denotes the mode or principle of holding of a superior by service; and is the fundamental principle of the feudal system. Though in this country all title is derived from the government, it is not so derived in a feudal sense.
In this state, at an early day after the revolution, the act concerning tenures was enacted. (1 R. L. 70.) It has remained a part of our system ever since, and will be considered hereafter more at large in its proper place. At present it is only necessary to mention that it is expressly enacted that the people of this state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all the lands within the jurisdiction of the state. It is further provided that all lands, the title to which shall fail from a defect of heirs, shall revert or escheat to the people. (1 R. L. 380, § 2. 1R. S. 718. 3 id. 2, 5th ed.) By the same statute all lands within the state are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners according to the nature of their respective estates; and all feudal tenures of every description with all their incidents are abolished. (3 R. S. 2, 5th ed.) This statute has several times been the subject of judicial interpretation. It has been generally treated as putting an end to all feudal tenures between one citizen and another. It has been held to be retro-active, and that after its passage all restraints upon alienation contained in conveyances in fee, whether executed before or after its date, are void. (De Peyster v. Michael, 2 Seld. 467. Van Rensselaer v. Hays, 19 N. Y. Rep. 68. Jackson v. Hart, 12 John. 81.)
But the act provided that the abolition of tenures should not take away or discharge any rents or services certain, which at any time theretofore had been or thereafter might be created or reserved ; nor should it be construed to affect or change the powers or jurisdiction of any court of justice in the state. (3 R. S. 2, § 4, 5th ed.)
The principles of the act of 1787, enunciating the original and ultimate property of the people of this state, in their right of sovereignty, in and to all lands within their jurisdiction; and declaring that all lands the title to which shall fail from a defect of heirs, shall revert or escheat to the people; and abolishing all feudal tenures of every description, with all their incidents, saving however all rents and services certain which at any time theretofore had been lawfully created or reserved; and declaring all lands within this state to be allodial, subject only to the liability to escheat; are contained in the organic law, and form a part of the present constitution. (Const. of 1846, art. 1, SS 11–13.)
The early settlers of this country did not claim the right of soil by virtue of discovery and settlement except as against other nations, and conceded the right of occupancy to the aborigines. The settlers merely claimed the right of pre-emption, admitting that it belonged to the government to extinguish the Indian title by purchase, which has in every instance been done. (Johnson v. McIntosh, 8 Wheaton, 543, 574. Martin v. Waddell, 16 Peters, 367.) The title of individuals was derived from their own governments. (Jackson v. Hart, 12 John. 81.)
The oppressive features of the feudal system were never adopted in this country. They were abolished, even in England, by the act of 12 Charles 2. But the idea and language of tenure have been retained to a certain extent to the present day; and much of the language of conveyances had its origin under institutions which have long since passed away. There is no practical inconvenience in these changes, since the rights which the language represents are in all cases, either recognized by statute or by local usage. The doctrine of escheat and of waste, and many of the doctrines in relation to rents, are of feudal origin.
Of the persons capable of holding and conveying lands. It is in this state declared by statute, (1 R. S. 719,) that every citizen of the United States is capable of holding lands within this state, and of taking the same by descent, devise or purchase. The same statute further declares that every person capable of holding lands (except idiots, persons of unsound mind and infants) seised of or entitled to any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect and subject to the restrictions and regulations provided by law. (Id. S 10.) This is merely declaratory of the common law.
In the case of Scott v. Sanford, (19 Howard, 393,) the supreme court of the United States decided that a free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a citizen within the meaning of the constitution of the United States. That case does not affect the question whether such negro, if born in this country and no longer a slave, is capable of holding and aliening lands within the state of New York. The constitution of 1777 makes no distinction of color with regard to inhabitants entitled to vote, or to hold real estate, and by a strong implication admits the capacity of colored persons who labor under no other incapacity, to hold and of course to convey real estate. This feature has been retained in both the subsequent constitutions, so far as relates to negroes.
But a different rule prevailed in relation to Indians. They were not treated as citizens, but as distinct tribes or nations, being under the protection of the government. No person was allowed to purchase any right or title to land from any Indian, without the authority or consent of the legislature. (Goodell v. Jackson, 20 John. 693. 1R. S. 719, S 12.) Many statutes were enacted on the subject with a view to protect the Indians against fraud and imposition, which will be found collected and reviewed by Chancellor Kent, in his elaborate opinion in the last mentioned case. These statutes were founded on wise and considerate principles of justice and policy. The necessity for them has in a great measure ceased, with the diminished number, and the improvement of the tribes. Accordingly our legislation on the subject has undergone corresponding
changes. By the act of 1843, (ch. 87, § 4, 3 R. S. 3, § 13, 5th ed.) any native Indian is permitted, after the passage of that act, to purchase, take, hold and convey lands and real estate in this state, in the same manner as a citizen; and whenever he shall become a freeholder to the value of one hundred dollars, he is made liable on contracts and subject to taxation and to the civil jurisdiction of the courts of law and equity of this state, in the same manner and to the same extent as a citizen thereof. By a subsequent statute, all nations, tribes or bands of Indians who own and occupy Indian reservations within this state, and hold lands therein as the common property of such nations, tribes or bands, are permitted by the acts of their respective Indian governments to divide such common lands into tracts or lots, and distribute and partition the same or parts thereof, quantity and quality relatively considered, to and amongst the individuals or families of such nations, tribes and bands respectively, so that the same may be held in severalty and in fee simple according to the laws of this state; but such lands are not to be set off to any person other than the occupant or his or her family. (Laws of 1849, ch. 420, S 7. 3 R. S. 4, § 18, 5th ed.)
The disability of alienage is somewhat modified by our statutes. At common law, though an alien might purchase land, or take by devise, he could only hold until an inquest of office was found. He was thus in constant danger of having his lands taken from him by the paramount authority of the state. But it is now provided that any alien who has come, or may hereafter come into the United States, may make a deposition in writing, that he is a resident of, and intends always to reside in the United States, and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws of the United States require to enable him to obtain naturalization; and on having the same recorded in the office of the secretary of state, he is authorized and enabled to take and hold lands and real estate of any kind whatever, to him and his heirs and assigns for ever; and may, during six years thereafter, sell, assign, mortgage, devise and dispose of the same in any manner as he might and could do if he were a native citizen of this state or of the United States, except that he shall have no power to demise any real estate which he may take or hold by virtue of this provision, until he becomes naturalized. (1 R. S. 720, $ 15, as amended in 1834, ch. 272. 3 R. S. 5, SS 24, 25, 5th ed.) This statute holds out inducements to an alien seeking his fortune amongst us, to perfect his naturalization as rapidly as possible; for when once naturalized, he is entitled to all the privileges and immunities of a natural born subject. By pursuing the course pointed out in the statute he can anticipate some of the benefits intended to be conferred by naturalization.
Although in some respects a corporation aggregate is not a citizen within the meaning of the constitution of the United States, (Bank of United States v. Devereux, 5 Cranch, 61,) yet it is quite obvious that in the statute of this state relative to the persons capable of holding and conveying lands, (1 R. S. 719; 3 id. 3, 5th ed.) the use of the term citizen of the United States, to designate the persons capable of holding and aliening lands within this state, was not intended to exclude corporations from these privileges. A corporation has been held to be embraced under a statute imposing taxes on inhabitants of a town. (2 Institutes, 703.) It has been held to be comprised under terms denoting persons, residents, &c. (The People v. Utica Ins. Co. 15 John. 382. Conroe v. Nat. Protection Ins. Co. 10 How. Pr. Rep. 403.) The statute defining the general powers, privileges and liabilities of corporations, forming a part of the same revision of 1830, declares that every corporation as such has power amongst other things to hold, purchase and convey such real or personal estate, as the purposes of the corporation shall require, not exceeding the amount limited in its charter. (1 R. S. 599. 3 id. 596, 5th ed.) And this is probably the same power which is incident, at common law, to all corporations, not expressly forbidden to deal in real estate. (Angell & Ames on Corporations, 83 et seq. Moss v. The Rossie Lead Mining Co. 5 Hill, 137.)
A corporation, although created but for a limited period, may acquire a title in fee to lands necessary for its use. Even if the deed lacks words of perpetuity, it takes a fee unless it is in terms restricted to some less estate. (Nicoll v. The New York and Erie Rail Road Co. 2 Kern. 121.)