L. 1909, ch. 52.

Tenure of real property.

§ 11.

effect that a woman might be lawfully naturalized who marries a citizen of the United States, and shall be deemed a citizen, it was held that any woman possessing the capacity, such as race and blood, may become naturalized by marriage with an American citizen, and be invested with his citizenship. Halsey v. Beer (1889), 52 Hun 366, 5 N. Y. Supp. 334.

An alien female who intermarries with a citizen becomes a citizen by virtue of the marriage, and is capable of taking and holding lands by purchase or descent. Luhrs v. Eimer (1880), 80 N. Y. 171; see also Wainwright v. Low (1892), 132 N. Y. 313, 30 N. E. 747.

Dower. The alien widow of a naturalized citizen, although never residing in this state, is entitled to dower. Burton v. Burton (1864), 1 Keyes 359.

Corporation may take and hold real property, but not beyond its corporate purpose; a railroad cannot take lands for an extension which is not authorized. Pres. of Union Bridge Co. v. Troy & Lansingburgh R. R. Co. (1872), 7 Lans. 240. Section 1 of art. 14 of the amendments to the United States' Constitution does not declare corporations to be citizens. DuQuesne Club v. Penn. Bank of Pittsburgh (1885), 35 Hun 390.

Alien beneficiaries.-A citizen of the United States may create a trust for the benefit of children who are subjects of Great Britain, and may appoint British subjects as trustees. Hayden v. Sugden (1905), 48 Misc. 108, 96 N. Y. Supp. 681.

§ 11. Capacity to transfer real property.-A person other than a minor, an idiot, or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest.

Source.-Former Real Prop. L. (L. 1896, ch. 547) § 3; originally revised from R. S., pt. 2, ch. 1, tit. 1, § 10.

References.-Power of married women to transfer real property. Domestic Relations Law, §§ 50, 51. Power of corporations, generally, to convey real property, General Corporation Law, § 11. Mortgage, sale or lease of real property by corporations, Id. §§ 70-76. Proceedings for the sale, lease or mortgage of real property of incompetent persons, Code Civil Procedure §§ 2348-2364; of real property of infant, Id. §§ 2345-2364.

Seisin means ownership. Matter of Dodge (1887), 105 N. Y. 585, 591, 12 N. E. 759; Van Rensselaer v. Poucher (1847), 5 Denio 35.

Married women.-As to effect of section upon common law disability of married women to convey lands, see Albany Fire Ins. Co. v. Bay (1850), 4 N. Y. 2, 15.

Infants. A deed of lands by an infant is voidable only. Gillett v. Stanley (1841), 1 Hill 121; Eagle Fire Co. v. Lent (1837), 6 Paige 635; Bool v. Mix (1837), 17 Wend. 119; Stafford v. Roof (1827), 9 Cow. 626. And something must be done to disaffirm it after he arrives at age. Wetmore v. Kissam (1858), 16 N. Y. Super. (3 Bosw.) 321, 327.

A deed executed by an infant will not operate to divest him of his title and is properly excluded when offered in evidence by a defendant in ejectment. Clapp v. Byrnes (1898), 155 N. Y. 535, 50 N. E. 277.

An infant will not be permitted upon becoming of age to receive the property bargained for, use it, and then repudiate any obligation to pay for it. Kincaid v. Kincaid (1895), 85 Hun 141, 32 N. Y. Supp. 476, affd. (1899), 157 N. Y. 715, 53 N. E. 1126.

The infant's retention of the proceeds of the sale after he becomes of age is not such an affirmance of the contract as to render valid against him an obligation given by him as a consideration for the land. Walsh v. Powers (1870), 43 N. Y. 23; compare Kitchen v. Lee (1844), 11 Paige 107.

Acquiescence as ratification.-A minor daughter deeded to her father property which he occupied as a homestead, until he died long after the minor reached her majority. The father, with the daughter's knowledge kept the premises in repair,

§ 11.

Tenure of real property.

L. 1909, ch. 52. and she never asserted her ownership during the father's lifetime. After the father's death and within the period of limitation, the daughter gave notice of disaffirmance of her conveyance, and brought action to recover her interest. It was held that the facts were not sufficient to show affirmance and did not bar recovery. Eagan v. Scully (1898), 29 App. Div. 617, 51 N. Y. Supp. 680, affd. 173 N. Y. 581, 65 N. E. 1116. Delay of nineteen years in disaffirming conveyance constitutes ratification. Aldrich v. Funk (1888), 48 Hun 367, 1 N. Y. Supp. 541.

An infant executed a deed of trust for his benefit. For a year after attaining full age he received the interest from the trustee in ignorance of his right to disaffirm the deed, but he accepted no income to which he was not entitled, regardless of the deed. It was held not to show a ratification of the deed after attaining full age. Pedro v. Pedro (1911), 71 Misc. 296, 127 N. Y. Supp. 997.

Where consideration of deed was nominal, infant does not ratify it by acquiescing in it for period of fourteen months after he comes of age. O'Rourke v. Hall (1899), 38 App. Div. 534, 56 N. Y. Supp. 471.

An infant may disaffirm his deed after he arrives at age without restoring the consideration; mere acquiescence for three years after arrival at full age is not a ratification. Green v. Green (1877), 69 N. Y. 553.

A mortgage by an infant is not rendered valid because the money secured by the mortgage was used for the improvement of the mortgaged premises. New York Bldg. Loan & Banking Co. v. Fisher (1897), 23 App. Div. 363, 48 N. Y. Supp. 152. A mortgage given by an infant is ratified where, after attaining majority, the mortgagor procures releases of portions of the mortgaged premises and takes no steps to disaffirm until foreclosure is begun, more than two years after her becoming of age. Wilson v. Danagh (1889), 55 Hun 605, 7 N. Y. Supp. 810.

Where a father gave to his infant daughter a mortgage on certain land, and then, while she was still an infant, induced her to release it, in consideration of an interest in other land, she was entitled to disaffirm the release on becoming of age. Foy v. Salzano (1912), 152 App. Div. 47, 136 N. Y. Supp. 699.

A mortgagor who executed his mortgage during infancy can disaffirm it on coming of age without returning the money received thereunder, if he spent the money before reaching his majority. Kane v. Kane (1897), 13 App. Div. 544, 43 N. Y. Supp. 662.

Adverse possession by infant.-Disability of infancy does not interrupt the running of the statute regulating the acquisition of title by adverse possession. Gregan v. Buchanan (1896), 15 Misc. 580, 37 N. Y. Supp. 83. See as to effect of § 375, Code Civ. Pro., Messinger v. Foster (1906), 115 App. Div. 689, 101 N. Y. Supp. 387.

Deeds of a lunatic; when voidable.-A deed executed by a lunatic before inquisition found is not void but voidable. Wamsley v. Darragh (1895), 12 Misc. 199, 33 N. Y. Supp. 274, affd. (1895), 14 Misc. 566, 35 N. Y. Supp. 1075; Jackson ex dem. Merritt v. Gumaer (1824), 2 Cow. 552; Stuckey v. Mathes (1881), 24 Hun 416. Until inquisition found the deed of a lunatic is not void but voidable, and a purchaser in good faith and for full value may maintain ejectment against strangers to the title in possession. Baldwin v. Golde (1895), 88 Hun 115, 34 N. Y. Supp. 587; Shea v. Campbell (1910), 71 Misc. 222, 128 N. Y. Supp. 508.

Deeds of person of unsound mind who has not been judicially declared incompetent is voidable and not absolutely void. Smith v. Ryan (1908), 191 N. Y. 452, 84 N. E. 402.

The deed of an insane person is not absolutely void, but voidable, at his election, on recovery of his reason, and has full force and effect until his option to declare it void, is exercised. Blinn v. Schwarz, 177 N. Y. 252, 69 N. E. 542, 101 Am. St. Rep. 806.

Presumption of sanity.-The deed of an alleged insane person will be presumed

L. 1909, ch. 52.

Tenure of real property.

§ 12.

to have been executed when such person was sane. Stewart v. Lispenard (1841), 26 Wend. 255, 297.

When void.-A deed by one who has been judicially declared to be a lunatic is absolutely void. Brown v. Miles (1891), 61 Hun 453, 16 N. Y. Supp. 251. After a person has been judicially declared a lunatic a conveyance by him is absolutely void and the presumption of the continuance of lunacy is conclusive until the inquisition has been superseded. Sander v. Savage (1902), 75 App. Div. 333, 78 N. Y. Supp. 189; same effect is Goodyear v. Adams (1889), 1 Silv. 185, 5 N. Y. Supp. 275, affd. (1890), 119 N. Y. 650, 23 N. E. 1149; Aldrich v. Bailey (1890), 28 N. Y. St. Rep. 571, 8 N. Y. Supp. 435, revd. on other grounds (1892), 132 N. Y. 85, 30 N. E. 264; Johnson v. Stone (1885), 35 Hun 380, 383.

A deed of a person of unsound mind is void when the fact of unsoundness is established, no matter how formal the execution of the instrument might have been. Valentine v. Lunt (1889), 115 N. Y. 496, 22 N. E. 209.

A conveyance of property at less than one-tenth its value, procured from a lunatic totally incapable of understanding the transaction, by a person knowing of lunacy and taking advantage of it to obtain the property is void. The act of acquiring property from a lunatic, incapable of understanding the transaction, by one taking advantage of the lunacy, is tortious. Sander v. Savage (1902), 75 App. Div. 333, 78 N. Y. Supp. 189. See also Goodyear v. Adams (1889), 52 Hun 612, 5 N. Y. Supp. 275, affd. 119 N. Y. 650, 23 N. E. 1149.

If the deeds were executed within the period covered by the finding of the jury they are not absolutely void, but are presumed to be so, until capacity to contract is shown by satisfactory evidence. Hughes v. Jones (1889), 116 N. Y. 67,

22 N. E. 446, 5 L. R. A. 632; compare Van Deusen v. Sweet (1873), 51 N. Y. 378, in which case it was held that where the facts show that the grantor was non compos mentis, the deed was void. See also Brown v. Miles (1891), 61 Hun 453, 60 N. Y. Supp. 251; Booth v. Fuller (1898), 35 App. Div. 117, 54 N. Y. Supp. 670.

When set aside.-A court of equity will not set aside and declare void the deed of a lunatic as a matter of course; it does so only upon equitable terms. Canfield v. Fairbanks (1872), 63 Barb. 461.

Where a conveyance made by a person of weak mind fairly represents the wishes of the grantor it was held that it would be sustained after his death, although it might have been set aside by the grantor in his lifetime. Nutting v. Pell (1896), 11 App. Div. 55, 42 N. Y. Supp. 987.

Restraint of transfer imposed in grant of fee simple is void. De Peyster v. Michael (1852), 6 N. Y. 467, 492.

Section of revised statutes cited.-Clarke v. Hughes (1852), 13 Barb. 147, 152.

§ 12. Deposition of resident alien.-(Repealed by L. 1913, ch. 152.) In general. Statutes relative to acquiring, holding and conveying of real property by aliens reviewed. Haley v. Sheridan (1907), 190 N. Y. 331, 83 N. E. 296, affg. (1906), 114 App. Div. 903, 100 N. Y. Supp. 1119.

A deposition made by an alien residing in any part of the United States who has declared his intention of becoming a citizen and who is and intends to remain a resident of the United States may be filed. Rept. of Atty. Genl. (1907) 280.

Effect of filing deposition.-Upon filing the deposition a resident alien may take and hold lands by descent and devise. Wright v. Saddler (1859), 20 N. Y. 320. Effect of failure to file. The title to a resident alien is good as against all, except the state, without filing the deposition. Goodrich v. Russell (1870), 42 N. Y. 177; Renner v. Muller (1879), 57 How. Pr. 229; Stamm v. Bostwick (1890), 122 N. Y. 48, 25 N. E. 233, 9 L. R. A. 597; Matter of Leefe (1844), 4 Edw. Ch. 395; In re Powers (1884), 6 Civ. Pro. 326; Nolan v. Command (1886), 11 Civ. Pro. 295. The provision of the act of 1875 that an alien must declare his intention to become

§ 13.

Tenure of real property.

L. 1909, ch. 52.

a citizen in order to "hold" land as against the state, is available only to the state; as against the rest of the world the title vests in the alien wihout precedent or subsequent condition, and as against the state the alien may hold until the escheat is declared. Smith v. Smith (1902), 70 App. Div. 286, 74 N. Y. Supp. 967.

A failure to file the declaration required of an alien renders his title liable to forfeiture during life by the state in proceedings to be taken for that purpose. The fact that the state failed in his lifetime to take proceedings, did not constitute a waiver and permit a transfer by inheritance to a citizen heir. The death of an alien without having filed such declaration works an immediate escheat to the state, without proceedings on its part having been taken, and therefore in the absence of legislation the title of a citizen heir of such alien cannot be sustained as against the state. McCormack v. Coddington (1906), 184 N. Y. 467, 77 N. E. 979, revg. (1905), 109 App. Div. 741, 96 N. Y. Supp. 571. See also Stappenbeck v. Mather (1911), 73 Misc. 434, 133 N. Y. Supp. 482.

The defeasible title by resident aliens is good, except as against the state. Their alienage is a cause of forfeiture which may be establishd by a judicial proceeding instituted on behalf of the state for that purpose. Maynard v. Maynard (1885), 36 Hun 227.

Devisees in remainder, though aliens, can take and hold as against the heir and all others except the state. People v. Conklin (1841), 2 Hill 67.

A resident alien devisee of a citizen takes, upon acceptance of the devise, a conditional title, absolutely as against the heirs of the testator but defeasible by the state until he complies with the provisions of the statute relating to a deposition. Hall v. Hall (1880), 81 N. Y. 130.

The alien heirs of a citizen cannot, except upon compliance with statutory conditions, inherit lands situated in this state. McCarty v. Terry (1872), 7 Lans. 236.

Defense of alienism not permitted in an action for specific performance because purchasers may make themselves capable to take real property by filing a deposition under this section. Scott v. Thorpe (1832), 1 Ed. Ch. 512.

§ 13. When and how alien may acquire and transfer real property.(Repealed by L. 1913, ch. 152.)

Effect of former statute considered. Renner v. Muller (1879), 57 How. Pr. 229, All of the cases referred to and considered under this section were decided prior to the repeal of the section by the act of 1913 and the power conferred upon friendly aliens to take hold and convey real property.

By the common law an alien could take real estate by devise although he could not hold it as against the state. Wadsworth v. Wadsworth (1855), 12 N. Y. 376. The state alone, according to the common-law rule could question the right of an alien to hold land. Belden v. Wilkinson (1901), 33 Misc. 659, 68 N. Y. Supp. 205.

The brother of a citizen who had been naturalized was entitled, under the law as it existed prior to the revised statutes, to take in preference to a nephew who had also been naturalized, but whose father died an alien. Jackson ex dem. Fitz Simmons v. Fitz Simmons (1832), 10 Wend. 9.

Under the Revised Statutes the alien brothers and sisters of a deceased citizen could not take the estate of their brother by inheritance. Kennedy v. Wood (1838), 20 Wend. 230. It was held that the Revised Statutes did not abolish the commonlaw right of an alien to take by devise. Matter of Leefe (1844), 4 Edw. Ch. 395. Section 17 of R. S., pt. 2, ch. 1, tit. 1, restricted the operation of a deposition to lands acquired after it was filed, and left the common law in force as to lands previously acquired. Wright v. Saddler (1859), 20 N. Y. 320.

L. 1909, ch. 52.

Tenure of real property.

§ 13.

Under the act of 1845, ch. 115, a resident alien could take upon complying with the provisions of that act, although his grantor or devisor had never filed a deposition. Dusenberry v. Dawson (1877), 9 Hun 511. The policy of the act of 1845 was much more liberal to aliens than that of previous statutes. Goodrich v. Russell (1870), 42 N. Y. 177. The said act materially modified the provisions of the Revised Statutes. Hall v. Hall (1880), 81 N. Y. 130. Nonresident alien heirs were entitled to take by descent under the act of 1845. Kilfoy v. Powers (1884), 3 Dem. 198; see also Luhrs v. Eimer (1880), 80 N. Y. 171.

The children of a resident alien succeed to his real estate as heirs although they are themselves nonresident aliens; the title of such of them as are males of full age being defeasible by the state unless deposition was filed. Goodrich v. Russell (1870), 42 N. Y. 177.

Under the act of 1845, as amended, all persons answering the description of heirs of a deceased resident alien, and who are of his blood, were made capable of taking and holding real property owned by him at the time of his decease, as heirs, whether they were citizens or aliens in the same manner as if they were citizens of the United States. Alien heirs who were minors took an indefeasible estate in the land under this act; such as were over the age of 21 years took a title defeasible by the state; until forfeiture declared by the state alien heirs were entitled to hold and enjoy the lands. Maynard v. Maynard (1885), 36 Hun 227.

The act of 1845 did not operate to confirm a title previously conveyed by an alien heir of one holding real estate. Brown v. Sprague (1848), 5 Den. 545. The act of 1845, ch. 115, only applied to the heirs of a deceased alien who resided within the state; the act did not remove the incapacity of alien heirs of naturalized citizens. Luhrs v. Eimer (1880), 80 N. Y. 171. Effect of act of 1845, see Wainwright v. Low (1892), 132 N. Y. 313, 30 N. E. 747; Smith v. Reilly (1900), 31 Misc. 701, 66 N. Y. Supp. 40.

The act of April 2, 1798, legalizing conveyances to aliens was held to authorize the alien heirs and devisees of the grantee to hold the lands conveyed, until by inheritance, devise or grant, the title came to a citizen. Duke of Cumberland v. Graves (1852), 7 N. Y. 305.

L. 1874, ch. 261 and L. 1875, ch. 38 entitled nonresident aliens to inherit as if they were then residents of the United States, and these statutes include within their effect the heirs of those who had died before as well as after their enactment. Kelly v. Pratt (1903), 41 Misc. 31, 83 N. Y. Supp. 636.

Under L. 1875, ch. 38, a nonresident alien, related by blood to a naturalized citizen of the United States, could take by devise from such citizen land situated in the state of New York. Smith v. Smith (1902), 70 App. Div. 286, 74 N. Y. Supp. 967.

Naturalization has no retroactive operation under the laws of United States, to vest or confirm in the citizen the title to lands which by reason of his alienage he cannot inherit at the time of the death of the ancestor. Heney v. Brooklyn Benevolent Society (1868), 39 N. Y. 333, 338.

The capacity of an alien to take real property by descent must exist at the time when the descent occurs, and the statutes in force at that time measure all his rights in this respect. The above section of the Real Property Law can have no retroactive effect, and such section and ch. 207 of the Laws of 1893, from which such section was in part derived, cannot be invoked in determining the status of an alien in his capacity to take real property by descent, where such descent occurred prior to the enactment of either of such statutes. Stewart v. Russell (1904), 91 App. Div. 310, 86 N. Y. Supp. 625, affd. (1906), 184 N. Y. 601, 77 N. E. 983.