Alien Property Custodian

“ On January 23, 1943, petitioner, the Alien Property Custodian, acting under § 5 (b) (1) (B) of the Trading with the Enemy Act, as amended by First War Powers Act 1941 § 301, 55 Stat. 839, 50 U.S.C.App., Supp. ”

“ Aliens may take and hold any property, real or personal, in this state by devise or descent from any alien or citizen, in the same manner in which citizens of the United States may take and hold real or personal estate by devise or descent within the country of such alien. ”

“ But the remedial effect of the act does not extend beyond the disability of an alien heir. It contains no enactment in favor of an alien who may have acquired possession or property in lands, whereby he could make a valid bequest or transmit it to his heirs, whether aliens or citizens by descent. ”

“ Every state or nation may unquestionably refuse to allow an alien to take either real or personal property, situated within its limits, either as heir or legatee, and may, if it thinks proper, direct that property so descending or bequeathed shall belong to the state. In many of the states of this Union at this day, real property devised to an alien is liable to escheat. ”

“ Under this query I will state the measures which have been adopted as to British property, the owners of which stand on a 397 much fairer footing than the tories. By our laws, the same as the English as in this respect, no alien can hold lands, nor alien enemy maintain an action for money, or other movable thing. Lands acquired or held by aliens become forfeited to the State; and, on an action by an alien enemy to recover money, or other movable property, the defendant may plead that he is an alien enemy. ”

“ Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation [u] : for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people; only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of Henry VIII, prohibiting alien artificers to work for themselves in this kingdom; but it is generally held they were virtually repealed by statute 5 Eliz. ”

“ By the common law, an alien cannot acquire real property by operation of law, but may take it by act of the grantor, and hold it until office found; that is, until the fact of alienage is authoritatively established by a public officer, upon an inquest held at the instance of the government. ”

“ The laws of alienage cannot apply to an artificial person, because it can have no country. Those [Pg 305] of descent cannot apply to it, because it can have no heirs. Those of escheat are foreign from it, for the same reason. Those of forfeiture, because it cannot commit a crime. Those of distribution, because, though it may be dissolved, it cannot die." Sir, I beg leave to add a few explanations. By the laws of most, perhaps of all the States, aliens are not permitted to hold real estate; but in all they are free to hold personal property of every kind, and particularly bank stock. ”

“ It may, however, be said that generally a married woman may now contract except with her husband, and except as surety for him. In many States she can even make contracts of these excepted classes.
ALIENS.—An alien is one born out of the jurisdiction of the United States, of a father not a citizen of this country, and who has not been naturalized. In times of peace, aliens may hold property and make contracts and seek the protection of our courts as freely as citizens. ”

“ The constitution had provided for the transmission of the estates of citizens to their children or heirs, (being citizens,) and then provides that congress shall legislate to give to aliens a reasonable time to take possession and to dispose of such an inheritance. Neither the language of the act nor the policy of the State, as it may be discovered from its constitutions and laws, authorizes the conclusion that an alien, claiming real property in Texas, can transmit it, by descent, to an heir who is also an alien. ”

“ Under the influence of the right of protection over its subjects abroad which every State holds, and the corresponding duty of every State to treat aliens on its territory with a certain consideration, an alien, provided he owns a nationality at all, cannot be outlawed in foreign countries, but must be afforded protection of his person and property. ”

“ PROPERTY RIGHTS AND DISABILITIES OF ALIENS IN CALIFORNIA
Alien Land Law. Initiative Act. Permits Acquisition and Transfer of Real Property by Aliens Eligible to Citizenship, to Same Extent as Citizens Except as Otherwise Provided by Law; Permits Other Aliens, and Companies, Associations, and Corporations in Which they Hold Majority Interest, to Acquire and Transfer Real Property Only as Prescribed by Treaty, but Prohibiting Appointment Thereof as Guardians of Estates of Minors Consisting Wholly or Partially of Real Property or Shares in Such Corporations ”

“ We do not think that the transfer of a mining claim by a qualified locator to an alien is to be treated as, ipso facto, an abandonment, or that the analogy of such a case to the casting of descent upon an alien can be maintained. ”

“ Aliens to sell all their merchandise within six months on paying a forfeiture. The Hosts to keep books only to register all contracts, etc., of aliens, and deliver a transcript thereto to the Exchequer. The Hosts to have two shillings in the pound on all such contracts, and to be sworn to be faithful, and any alien refusing to submit to these regulations, to be imprisoned until security be given to comply with them. ”

“ There is some conflict of opinion in the decisions of the Supreme Court of Texas as to the effect upon the title of a sale of real property to a non-resident alien. Language properly applicable to grants to aliens under the colonization laws, and the instructions to the commissioner under the contract with the Empresario Austin, has sometimes been used with reference to sales to them by private parties. ”

“ An Isopolite would enjoy the same rights to real estate as a native-born citizen, such as buying, {184} selling, trading in, or disposing of the same by will; and the slender thread and fragment of the alien laws still remaining in the United States, so far as they apply to citizens whose respective Governments are parties to the treaty, would necessarily disappear. ”

“ For example, conveyances of land would still be subject to nondiscriminatory provisions as to form or recording. Nor can the right to 'dispose,' secured by the treaty, be deemed to give a wholly unrestricted right to the alien to acquire property, without regard to reasonable requirements relating to particular kinds of property and imposed upon both aliens and citizens without discrimination. ”

“ Is a statute passed in execution of that power any less applicable to an alien who has acquired a commercial domicile whthin the United States, but who, having voluntarily left the country, although for a temporary purpose, claims the right under some law or treaty to re-enter it? We think not. The words of the statute are broad, and include 'every case' of an alien, at least every Chinese alien, who at the time of its passage is out of this country, no matter for what reason, and seeks to come back. He is none the less an alien because of his having a commercial domicile in this country. ”

“ An alien enemy cannot be permitted to make the declaration required by law, preparatory to the naturalization of aliens. Ex parte Newman, 2 Gallis’ C. C. R. 11.
An alien enemy cannot sustain a suit in a prize court, nor can a citizen claim the property of an alien enemy in a prize court, upon an alleged sale since the war. ”

“ Justice Lamar, when secretary of the interior, ruled that, an alien having made homestead entry, and subsequently filed his intention to become a citizen, the alienage at time of entry, in the absence of an adverse claim, would not defeat the right of purchase. ”

“ Every citizen of the United States is capable of holding lands, or real estate, and of taking them by devise, descent, or purchase, and of selling and conveying away such estate. Aliens, by common law, have not this power. In many of the states, however, this disability has been removed by statute. On declaring their intention to become citizens, and complying with certain regulations, aliens acquire the right to take and hold real estate to themselves and their heirs. ”

“ But when it is considered, that the effect of an alien's being made denizen, is not to enable him to take lands, but to enable him to hold them against the king, we at once see, that his language is to be limited to the proposition laid down in the previous sentence, to wit: that the king's grants shall not enure to the double intent, when made to an alien, of vesting in him the thing granted, and then, by implication, constituting him a denizen, so as to enable him to hold an indefeasible estate. ”

“ II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.
1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. ”

“ Aliens entitled to acquire and hold Lands in the Colony.I. That it shall be lawful for any Alien, and he or she is hereby declared entitled, by Grant, Conveyance, Lease, Assignment, or Bequest, or otherwise, to take, acquire, hold and possess, any Lands or other immoveable Property situated in this Island;And to sell, transfer, assign, or bequeath the same. ”

“ But the laws referred to had respect to the case of aliens who, when they were such, acquired, or attempted to acquire, lands in Spain or her colonies, and not to the case of citizens or subjects who, on the division of an empire, happened to hold lands in the section in which they did not reside, and therefore had good title thereto when, by operation of law, they became aliens as to such section. It must be admitted that aliens of this class stand on a different footing, in equity at least, from those who, being aliens, attempt, against the law, to acquire real estate in a foreign country. ”

“ This case raises the question whether the inheritance-tax law of the United States applied, in 1899, to the intangible personal property of a nonresident alien who never had a domicil in the United States and died abroad,-such personal property being within the United States and having passed to his son, also an alien domiciled abroad, as sole legatee and next of kin of the deceased, partly under a will executed abroad and partly under the intestate laws of Spain. ”

“ According to this decision, considered with reference to the general prohibitory language of the laws of Mexico, respecting the acquisition of real property by aliens, in force in Texas previous to the latter's independence, the rule which there obtained may be stated to have been substantially this: that a non-resident alien could not acquire, under a sale by a citizen, such an interest in land as to be able to hold it against the government, or to prevent it being denounced and adjudged to be vacant land, subject to be regranted ”

“ Rep. 213, turned upon the known distinction, that an alien who cannot inherit, shall not prevent the descent to a citizen, who can make title as heir, not through the alien, but aside from him; as in the common case in England, of a younger brother inheriting from his father, though he has an elder brother living, who is an alien. ”

“ The Continental Congress, apparently fearing that under the Articles of Confederation it lacked power thus to alter the laws of the States, instructed the Commissioners who negotiated the treaty ' (t) hat no rights be stipulated for aliens to hold real property within these States, this being utterly inadmissible by their several laws and policy,' but that a person who would inherit personalty but for his alienage should be permitted to sell the property and withdraw the proceeds within a reasonable time. ”

“ Whereas, an alien may take by purchase, and hold until devested by office found. It is argued, that the reason usually assigned for this distinction, to wit, 'Nil frustra agit lex,' may, with the same correctness, be applied to the case of a grant by the king to an alien, as to one taking by descent, dower, or curtesy: That the alien only takes from the king to return the subject of the grant back again to the king by escheat. ”

“ Much reliance for the contrary view is placed on the power to vest alien property in an agency of the United States. [10] But the power to vest, i.e., to take away, what may be owned or acquired does not reveal a policy at odds with the reciprocal right to inherit granted by Article IV of the treaty. For the power to vest is discretionary not mandatory. The loss of the inheritance by vesting is, therefore, not inevitable. But more important, vesting does not necessarily deprive the alien enemy of all the benefits of his inheritance. ”

“ It is assuming the very proposition to be proved. But I shall give this objection two answers. In the first place, although I have become somewhat rusty in my legal knowledge, yet I feel perfectly safe in asserting, that, under the strict principles of the common law of England, an alien may purchase real estate, may hold real estate, may transmit real estate to his heirs, or devise it by his will. ”

“ An Oregon statute conditioned a nonresident alien's right to inherit property in Oregon upon the existence of a reciprocal right of American citizens to inherit in the alien's country upon the same terms as citizens of that country; upon the right of American citizens to receive payment within the United States from the estates of decedents dying in that country; and upon proof that the alien heirs of the American decedent would receive the benefit, use, and control of their inheritance without confiscation. ”