State v. Stevenson

SULLIVAN, C. J.

— This is an action in ejectment, brought by the state, against David 0. Stevenson, C. C. Stevenson, and Henry Earning, to recover the possession of lot 2 and southeast quarter of northwest quarter, section 7, township 4 north, range 1 east, Boise meridian. The defendants David 0. Stevenson and Henry Earning filed disclaimers, and defendant C. C. Stevenson answered, claiming to be the owner of said premises; that he acquired title to said premises under and by virtue of a certain tax deed. The following facts appear from the record: That one Adolph Hempel died on or about the sixteenth day of April, 1887, seised in fee of said tract of land; leaving no known heir surviving him; that letters of administration were duly issued to the public administrator of Ada county upon the estate of said deceased, and said estate duly administered; and on the sixteenth day of January, 1889, said administrator made his final report therein, which was allowed and ■ approved. It appears that, when said final report was approved, said administrator had in his hands $6,093.34 in cash belonging to said estate, the lands above described, and certain certificates of water stock; that said cash was turned into the state treasury, and *369 the administrator discharged. It also appears that said deceased was a foreigner, and that no heirs or claimants have appeared and claimed said estate, or any part of it. It also appears from the answer of the defendant that said real estate was assessed for connty and state purposes in the year 1893, and, the taxes not having been paid, became delinquent; that said real estate was sold by the tax collector to one F. S. Shirley, for the sum of fifty-one dollars and fifty cents, and thereafter the tax collector conveyed, by tax deed, said premises to said Shirley; that said Shirley thereafter sold and conveyed said premises to the defendant C. C. Stevenson. Said defendant also alleges that he has, in good faith, made valuable improvements upon said premises, to the amount of ninety-five dollars. He also avers that said Hempel died leaving a sister surviving him, residing in Vienna, Austria, whose name was unknown to defendant. The issues being thus made, counsel for the state moved for judgment on the pleadings, which motion was granted, and judgment entered against the defendant. The appeal is from the judgment. Several errors are assigned, all to the effect that the court erred in sustaining plaintiff's motion for judgment on the pleadings.

The several sections of the Bevised Statutes applicable to this case are as follows:

“See. o'715. Eesident aliens may take in all cases, by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession.

“Sec. 5716. When succession is not claimed as provided in the preceding section, the district court, on information, must direct the attorney general to reduce the property to his or the possession of the territory, or to cause the same to be sold, and the same, or the proceeds thereof, to be deposited in the territorial treasury for the benefit of such nonresident foreigner, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the terri *370 torial controller and treasurer is produced that he is entitled to succeed thereto.

“See. 5717. When so claimed, the evidence and the joint order oí the controller and treasurer must be filed by the treasurer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent is placed by the territorial treasurer to the credit of the school fund.”

As Hempel died intestate, on the sixteenth day of April, 1887, the right of any nonresident-foreigner to claim said land under the provisions of said section 5715 expired on the sixteenth day of April, 1892. (See State v. Smith, 70 Cal. 153 , 12 Pac. 121 ; People v. Roach, 76 Cal. 294 , 18 Pac. 407 .) After the last-mentioned date, no nonresident foreigner could take said real property by succession.

The question arises then, In whom did the title thereto vest after the five year period named in said section 5715? It is contended by counsel for appellant that the title to said real estate must vest somewhere, and could not be held in abeyance, and that it vested in the sister, as heir at law of the deceased. The averment in the answer in regard to deceased having a sister is as follows: “Defendant admits that succession to the ‘estate of said Hemple and the said premises has not been claimed-by any heir of said deceased, and that more than five years have elapsed since the death of said Hempel, but alleges that said Hempel died leaving a sister residing in Vienna, Austria, whose name is unknown to defendant.” It is there admitted that no heir of the deceased had claimed said premises within the five years allowed therefor by the provisions of said section 5715. Said sister was barred from all right of succession to said property at the end of said five years period. If she had title (which we do not concede) during those five years, it ended when that period ended. She could not successfully claim succession thereafter.

Conceding the suggestion of counsel that the title could not remain in abeyance, where did it go when the nonresident foreigner could claim it no longer ? We think it went to the state. *371 to be disposed of as provided by said sections 5716 and 5717. The nonresident foreign heir cannot recover the real property of his decedent after said period of five years, but the law permits him to receive the proceeds of the sale of such real estate within five years after the same has been deposited with the state treasurer, upon proper proof. As no succession was claimed within the five year period, section 5716, supra, provides that the district court, on information, must direct the attorney general to reduce the property to his possession, or that of the state, or cause it to be sold, and the proceeds thereof to be deposited in the state treasury, for the benefit of such nonresident foreigner or his legal representative, to be paid to him; provided, within five years after such deposit, satisfactory proof be made that he is entitled to succeed thereto. The proceeding therein provided is not for the purpose of transferring the title to the property to the state, or declaring an escheat to the state. It is for the purpose of reducing the property to the possession of the attorney general or the state, or to cause it to be sold. In this country the general rule is that, when the title to land fails for want of heirs, it escheats to the state. That rule is applicable in this state. Ho nonresident foreign heir having appeared and claimed succession within five years after the death of Hem pel, said real estate escheated to the state, without inquest in the nature of office found, to vest title in the state. The title passed by operation of law, without court proceedings of any kind, as no proceeding or inquest in the nature of “office found” is provided for by statute in such eases in this state. As the state acquired title to said land by escheat on the sixteenth day of April, 1893, any assessment of taxes on said land thereafter was absolutely void, and no title- could result therefrom. The judgment of the court below is affirmed. Costs of this appeal are awarded to respondent.

Huston and Quarles, JJ., concur.