45 Wash. 327, 88 P. 327 ABRAMS V. STATE (S. Ct. 1907).

                    ROBERT ABRAMS, Appellant,
      THE STATE OF WASHINGTON et al., Appellants, and R. V.
      ANKENY, as Administrator, etc. et al., Respondents

                          No. 6162
45 Wash. 327, 88 P. 327
                    January 15, 1907, Decided

Appeals from a judgment of the superior court for King county,
Yakey, J., entered January 15, 1906, upon findings in favor of
the defendants, after a trial before the court without a jury, in
an action to recover possession and quiet title to real estate.

ALIENS -- TITLE TO REAL ESTATE. One who conveys land to an alien
has no right to the property on the theory that the deed is void,
under Const., art. 2, 33, so declaring, since the deed is void
as against the state only, which alone can raise objection to the
alien ownership of real property.
ALIENS -- ESTOPPEL. A deed to an alien estops the grantor from
claiming an interest in the land, where he received the
consideration and made no claim during the life of the grantee
while valuable improvements were being made thereon.
Under statutes 11 and 12, Will. III, ch. 6, modifying the common
law of England so as to enable English subjects to inherit from
an alien, and which is a part of our common law, and under our
constitution giving an alien a right to take title by
inheritance, no disability exists in an alien to transmit title
by inheritance, and aliens may receive title by inheritance from
an alien (DUNBAR and ROOT, JJ., dissenting).
ALIENS -- ESCHEAT -- LOSS OF STATE'S RIGHTS. The state loses its
right to escheat lands held by an alien contrary to the
provisions of the constitution, by failing to institute
proceedings therefor during the lifetime of the alien owner
(DUNBAR and ROOT JJ., dissenting).

Will H. Thompson, Victor E. Palmer, and G. Ward Kemp, for
appellant Abrams.
The Attorney General, R. F. Booth, Kenneth Mackintosh, and R. W.
Prigmore, for appellants.
Hughes, McMicken, Dovell & Ramsey, for respondents.

{*335} This action was commenced by the plaintiff, Robert
Abrams, to recover possession of, and quiet title to, certain
real estate in the city of Seattle, which, on August 1, 1890, for
a consideration of $ 3,500 then received, he and his wife
conveyed by warranty deed to one Lou Graham. His grantee entered
into immediate and exclusive possession, made valuable
improvements, and continued to exercise full acts of ownership,
until March 11, 1903, when she died intestate. Shortly after her
death, the defendant R. V. Ankeny was appointed and qualified as
her administrator, and has ever since been in possession, leasing
the premises to the defendants N. A. Hebert and C. W. Shomo. The
plaintiff has never been in possession since the date of his
deed, nor has he at any time claimed title or right of possession
prior to the commencement of this action, in September, 1904. Lou
Graham was an alien, being a subject of the German Empire. On May
17, 1894, she filed in the United States district court for the
district of Washington, northern division, her declaration of
intention to become a citizen of the United States, but never
took any further steps to perfect her citizenship. For a long
time prior to obtaining her deed, and at all times thereafter,
she was a woman of notoriously bad character. Immediately after
purchasing the property, she constructed thereon a three-story
brick building, in which she, as proprietress, conducted a house
of prostitution until her death. She was repeatedly arrested and
fined in the police court of the city of Seattle for her
violations of the law in conducting such house. The defendant
Johann Bernhard Aug. Ohben, her brother, and the defendants
Johanna Bertha Ohben-Klaus and Pauline Eberhardt (nee Ohben), her
sisters, all aliens, are her only heirs at law, and will
hereafter be mentioned as the "alien heirs." The plaintiff,
Abrams, claims title to the real estate on the theory that, as
Lou Graham was an alien, his deed was absolutely void, and passed
no title. The state of Washington and the county of King have
each filed separate answers, claiming that the property, upon the
death of Lou Graham, {*336} by operation of law, escheated to the
state for the benefit of the school fund, while the alien heirs
claim title by descent from the deceased.
The trial court found all the facts above stated, and further
found, that the real estate was, at the date of the trial, of the
value of $ 15,000; that the improvements thereon were of the
additional value of $ 25,000; that no action or proceeding had
ever been brought or instituted by the defendants the state of
Washington and the county of King against Lou Graham, in her
lifetime, for any escheat or forfeiture of the real estate; that
at all times subsequent to the purchase of the real estate by Lou
Graham, and up to the time of her death, she, under claim and
color of title made in good faith, had paid or caused to be paid
all taxes levied thereon; that since her decease the defendant,
R. V. Ankeny, as her administrator, has paid all subsequent
taxes; that Lou Graham was born in Hamburg, Germany; that her
true name was Emelie Ohben; that after coming to this country she
adopted the name of Lou Graham, which name was so adopted by her
in good faith; that for more than twenty years immediately
preceding her decease, she lived in the city of Seattle under the
name of Lou Graham, and in that name owned and held the real
property in dispute in this action, and other real property; that
she was never at any time known by any other name in the city of
Seattle; that since the year 1888 she was known to and
corresponded with her relatives under the name of Lou Graham, and
in that name paid visits to them in Germany; that the defendants,
the alien heirs above mentioned, and the said Lou Graham were all
citizens and subjects of the republic of Hamburg until the
formation of the German Federation, and thereafter became and
continued to be citizens and subjects of the German Empire,
except as the citizenship of Lou Graham might have been affected
by her declaration of intention to become a citizen of the United
On the foregoing findings the court made and entered its
conclusions of law, as follows:
{*337} "That the plaintiff, Robert Abrams, has no right, title or
interest in or to the premises in controversy, or any part
thereof, and is not entitled to recover in this action.
"That the premises in controversy are not subject to escheat or
forfeiture at the suit of the defendant the state of Washington,
or of the defendant the county of King, upon their
cross-complaints, or otherwise.
"That the defendant R. V. Ankeny, as administrator of the estate
of Lou Graham, deceased, is entitled to the possession of said
premises, for the purpose of continuing and concluding the
administration of the estate of Lou Graham, deceased, and is so
entitled to hold the possession thereof by himself and his
"That the defendants Johann Bernhard Aug. Ohben, Johanna Bertha
Ohben-Klaus and Pauline Eberhardt, as the sole surviving heirs of
the said Lou Graham, are the owners of the premises in
controversy, by inheritance from the said Lou Graham, and are
entitled to have said premises distributed and set apart to them
upon the final settlement of said estate."
From a final judgment and decree in favor of the alien heirs, the
plaintiff Abrams, the state of Washington, and the county of King
have separately appealed.
The appellants have excepted to a portion of the findings made by
the trial court, but from an examination of the entire record we
conclude that the facts above stated are fully supported by the
evidence. The only contention between the state of Washington and
the county of King is whether the property has escheated for the
benefit of the school fund of the entire state or for the
benefit of the school fund of King county only, and this question
was reserved by them for future determination in the event this
court should hold the land to have escheated. Many assignments of
error are made by the appellants, but they all depend for their
determination upon the construction to be placed upon 33 of
art. 2 of the constitution of the state of Washington, which
reads as follows:
"The ownership of lands by aliens, other than those who in good
faith have declared their intention to become citizens of {*338}
the United States, is prohibited in this state, except where
acquired by inheritance, under mortgage or in good faith in the
ordinary course of justice in the collection of debts; and all
conveyances of lands hereafter made to any alien directly, or in
trust for such alien, shall be void; Provided, That the
provisions of this section shall not apply to lands containing
valuable deposits of minerals, metals, iron, coal, or fire clay,
and the necessary land for mills and machinery to be used in the
development thereof and the manufacture of the products
therefrom. Every corporation, the majority of the capital stock
of which is owned by aliens, shall be considered an alien for the
purposes of this prohibition."
The appellant Abrams contends that the purchase of lands by
aliens is prohibited in this state; that all conveyances of land
to them are absolutely void; that Lou Graham's declaration of
intention to become a citizen was not made in good faith; that
his deed to her, being absolutely void, conveyed no title, and
that the legal title, therefore, remained in himself.
The appellants the state of Washington and county of King claim
that the deed to Lou Graham was void as against the state; that
the state could, during her lifetime, by a proceeding in the
nature of office found, have declared a forfeiture and escheat of
the realty; that on her death it escheated by operation of law;
that her declaration of intention to become a citizen of the
United States was not made in good faith in contemplation of the
constitution; that being an alien she had no inheritable blood;
and that upon her decease she could transmit no title to her
alien heirs, who now claim by inheritance.
At common law an alien might take land by deed and hold the same
as against all persons whomsoever, subject only to the right of
the state to claim it by escheat upon office found, or by some
other act or procedure equivalent thereto, and until such action
was taken by the state, the alien might dispose of his interest
in the realty, either by conveyance or devise, and his grantees
or devisees would thereupon acquire {*339} title notwithstanding
his alienage. An alien could neither take nor transmit title to
real property by descent, having no inheritable blood. If he died
intestate without having made conveyance of the land acquired by
deed, the same immediately vested by escheat in the state without
any inquest of office found. 2 Am. & Eng. Ency. Law (2d ed.),
70-74; 2 Cyc. 90, 3 Current Law, 138; 1 Bacon's Abridgment,
Chapter on Aliens, 202; 2 Kent, Commentaries, p. 61; 1 Jones, Law
of Real Property in Conveyancing, 163, 166.
"As to who may be freeholders, there is no exception in this
country, beyond the disability in some states arising from
alienage. By the common law, the chief difficulty, in this
respect, is in acquiring title rather than in holding the estate
when acquired. Thus an alien may purchase lands or take them by
devise and hold them against all the world but the state. Nor can
he be divested of his estate, even by the state, until after a
formal proceeding called 'office found;' and until that is done,
may sell and convey or devise the lands, and pass a good title to
the same. (And if an alien purchase lands and afterwards become
naturalized before office found, he acquires an indefeasible
estate.) But an alien cannot take lands by descent, nor transmit
them to others as his heirs by the common law. 1 Washburn, Real
Property (6th ed.), 131.
See, also, Levy v. M'Cartee, 6 Pet. 102; Fairfax's Devisees v.
Hunter's Lessee, 7 Cranch 619, 3 L. Ed. 453; Orr v. Hodgson, 7
Wheat. 453; Phillips v. Moore, 100 U.S. 208, 25 L. Ed. 603; Moers
v. White, 6 John. Ch. 360; Quigley v. Birdseye, 11 Mont. 439, 28
P. 741.
Because of lack of inheritable blood in an alien, it was
originally the rule at common law that an alien could not inherit
from a citizen, nor could the citizen inherit from an alien. 2
Cyc. 94-96. By the act of 11 and 12, Will. III ch. 6, however,
Parliament, in the year 1700, removed the common law disability
from natural born subjects, claiming descent from, through, or
under alien ancestors, so that such subjects might thereafter
inherit from their alien ancestors. 1 Bacon's Abridgment, Chapter
on Aliens, 203.
{*340} We are now called upon to interpret 33 of art. 2 of our
constitution, and determine to what extent it supplants or
modifies the foregoing common law principles. In view of former
decisions of this court, we now hold that the appellant Abrams,
after the execution and delivery of his deed, retained no right,
title, or interest in or to the real estate in dispute. In Oregon
Mortgage Co. v. Carstens, 16 Wash. 165, 47 P. 421, 35 L.R.A. 841,
this court, in commenting on a title acquired by an alien
corporation by deed, said:
"It is further contended by the plaintiff that its title so taken
would be only a defeasible one, at least, and that it could only
be attacked by a direct proceeding on the part of the state, and
that a deed of the land by the plaintiff to a party entitled to
hold it, before the state should undertake to have the conveyance
to it set aside, would transfer a good title; and we are of the
opinion that this position is well taken, for the objection would
then be obviated; and conceding this to be true, the deed
tendered by the plaintiff to the defendant would have passed to
the defendant an indefeasible title. There are a number of
authorities to which our attention has been called, upon
provisions very similar to the one here in question, and the
tendency of the decisions elsewhere, although under somewhat
different provisions, but all for a like purpose, is to strongly
sustain the plaintiff here. 6 Thompson, Corporations, 7918;
Phillips v. Moore, 100 U.S. 208; Cross v. De Valle, 1 Wall. 5;
Carlow v. Aultman, 28 Neb. 672, 44 N.W. 873; American Mortgage
Co. v. Tennille, 87 Ga. 28, 13 S.E. 158; Williams v. Bennett, 1
Tex. Civ. App. 498, 20 S.W. 856.
"In Murfree on Foreign Corporations, 353, it is said that, if a
foreign company has power to hold real estate at all, a deed to
it in violation of the local law will pass a title good against
all the world except the state. As an alien may acquire and hold
lands in this state in the instances specified, and in case of
mineral lands, etc., under the last part of the provision, may
clearly obtain title thereto by direct purchase, the mere form of
the conveyance can prove nothing; and the real question in each
case must be whether the land was obtained in good faith or by
fraud in violation of the provisions, and this should only be
determined by a proceeding {*341} upon the part of the state.
Before such a determination, the presumption would be that the
parties had kept within the law, rather than that they had
violated it, and prima facie the deed would be good."
In Cross v. De Valle, 1 Wall. 5, 17 L. Ed. 515, cited in the
above quotation, the supreme court of the United States said:
"That an alien may take by deed or devise, and hold against any
one but the sovereign until office found, is a familiar principle
of law, which it requires no citation of authorities to
establish. Nor is it affected by the fact that a statute of Rhode
Island will permit aliens to take a license to purchase, which
will protect them even as against the state; nor by the fact that
a chancellor may not entertain a bill by an alien to enforce a
trust, which, if conveyed to him, might immediately escheat to
the crown."
In Goon Gan v. Richardson, 16 Wash. 373, 47 P. 762, an alien had
taken a mortgage on real estate, foreclosure of which was sought
by his administrator. The appellant, being the grantee of his
mortgagor, had by answer alleged that the conveyance to the alien
was intended as a deed, and not as a mortgage, and was void. In
passing upon this contention, this court, following Oregon
Mortgage Co. v. Carstens, supra, said:
"Second, it was not competent for the appellant to show that the
mortgagee was incapable of taking title to real estate. That
could only be shown in a suit by the state. Oregon Mortgage Co.,
Limited, v. Carstens, ante, p. 165."
The later cases of State ex rel. Winston v. Morrison, 18 Wash.
664, 52 P. 228; State ex rel. Winston v. Hudson Land Co., 19
Wash. 85, 52 P. 574, 40 L.R.A. 430; and State ex rel. Morrell v.
Superior Court, 33 Wash. 542, 74 P. 686, are not in conflict with
this doctrine. In State v. Morrison the attorney general
instituted a proceeding on behalf of the state to avoid a
ninety-nine-year lease to an alien corporation, no question as to
its validity having been raised by the lessor. In State ex rel.
Winston v. Hudson Land Co. {*342} a similar proceeding was
instituted. State ex rel. Morrell v. Superior Court, supra, was a
proceeding by certiorari to review the judgment of the superior
court in a condemnation proceeding instituted by an alien
corporation to condemn land of the relator, a citizen, wherein
this court, after alluding to the case of Oregon Mortgage Co. v.
Carstens, supra, and Goon Gan v. Richardson, supra, said:
"But whatever may be said of the soundness of the doctrine there
enunciated, those cases are easily distinguished from the case at
bar, where the defendant is not questioning the right of the
alien plaintiff to hold real estate, but is questioning its right
to take real estate that belongs to the defendant; and, whatever
questions of public policy might intervene to prevent alleged
aliens from being annoyed at the instance of impertinent or
spiteful citizens, such policy could not be applied to a citizen
who is defending the title to and possession of his own land."
The effect of the above language was not to overrule the doctrine
previously announced in the Oregon Mortgage Co. and Goon Gan
cases; nor to hold that a grantor could question the validity of
his deed to an alien grantee. Its effect was merely to hold that
an owner of land, which an alien corporation was seeking to
acquire for a public use by exercising the right of eminent
domain, was entitled, in protection of his own property, to
question the right of such alien corporation to condemn.
Under our constitution and the authorities above cited, we hold
the rule in this state to be that the deed of the appellant
Abrams entirely divested him of any title to the real estate;
that he is in no position to question its validity; that his
alien grantee took what was known at common law as a defeasible
estate, void as against the state only, and which might escheat
to the state upon office found. Although we have found no
enactments in other states identical with our constitutional
provision, we nevertheless think this doctrine is in harmony with
numerous rulings of the appellate courts of this country, {*343}
both Federal and State. In any event, the appellant Abrams should
be estopped from now claiming any interest in the property. He
sold it for a valuable consideration, which he received. He stood
idly by for a period of almost thirteen years prior to the death
of Lou Graham, and permitted her to retain possession, to make
valuable improvements, and to pay all taxes and charges. In the
meantime Seattle had grown to be a great city, the property had
rapidly increased in value, and the appellant Abrams had made no
claim thereto prior to the death of his alien grantee. He now
contends that his deed was and is void, and that no estoppel can
be based upon a void instrument. An estoppel can, however, be
based upon his personal acts. It would be a ruling shocking to
every sense of common honesty to now permit him to recover this
property. The trial court committed no error in holding that he
had no title.
The appellants the state of Washington and county of King claim
title by escheat, on the theory, that Lou Graham was at all times
an alien; that her declaration of intention to become a citizen
of the United States was void; that she being an alien of
notoriously bad character and an habitual violator of the law
could not be held to have made such declaration of intention in
good faith; that she was prohibited by the terms of our
constitution from acquiring title to the real estate by purchase;
that as against the state, the deed to her was void; that she had
no inheritable blood and could not upon dying intestate transmit
title to her alien heirs, and that the property, by operation of
law and without any proceeding in the nature of office found,
upon her death escheated to the state. In view of our
conclusions, it will not be necessary for us to determine whether
her declaration of intention was, in contemplation of our
constitution, made in good faith. We will consider this case upon
the theory that she never made any such declaration. Being an
alien, it follows that she had no right to acquire title to real
estate in this state by purchase, {*344} and the deed executed to
her by the appellant Abrams was void in the sense that a
forfeiture of the property might have been declared by the state
at any time while it remained in her possession and under her
control, she claiming title under such deed. This court, however,
in the case of Oregon Mortgage Co. v. Carstens, supra, in
substance held that an alien holding lands in this state by
purchase under a defeasible title, subject to attack on the part
of the state, might by deed transfer a good title to a third
person entitled to receive and hold it, provided no proceeding
had theretofore been taken by the state for the purpose of
declaring a forfeiture or escheat, In other words, if Lou Graham,
after receiving her deed from the appellant Abrams, had, for a
good and sufficient consideration, conveyed the property to a
third party entitled to receive title, the state of Washington
could not thereafter, by office found, have forfeited such title
as against her grantee. The state could, however, at any time
prior to such transfer, have successfully instituted proceedings
to declare a forfeiture and escheat.
The question now before us is whether, by reason of the death of
Lou Graham, the state has lost its right to institute proceedings
in the nature of office found for the purpose of declaring a
forfeiture and escheat, or whether such right still continues.
Under our constitution, an alien, who has not in good faith made
any declaration of intention to become a citizen of the United
States, may acquire title to real estate (1) by inheritance; (2)
under mortgage or in good faith in the ordinary course of justice
in the collection of debts; (3) in lands containing valuable
deposits of minerals, etc., and (4) in land necessary for mills
and machinery to be used in the development of such mineral lands
and in the manufacture of the products therefrom. When the
constitution authorized aliens to acquire lands in these several
instances and methods, it was undoubtedly contemplated that they
might acquire a full and complete estate in fee simple, which
would include an {*345} estate of inheritance. If this be a
correct interpretation, then the estates thus acquired could be
transmitted by descent to the heirs of such aliens. It is
contended by the state, however, that Lou Graham only acquired a
defeasible estate to the land in question, and that, as she was
an alien and did not at common law have inheritable blood, she
could not transmit any title or estate to her alien heirs,
although under the constitution they, as aliens, could receive.
In other words, there existed a disability upon her part to
transmit, and not upon their part to receive by inheritance. As
above stated, the common law of England was so modified by the
statute of 11 and 12 Will. III, ch. 6, in the year 1700, as to
enable English subjects to inherit from an alien. This statute
having been enacted prior to the separation of the American
colonies from the mother country, has become a part of the common
law of this state, except in so far as it has been supplanted by
our constitution or statutory enactments. Under this rule and
without the provisions of our constitution, a citizen could
inherit from an alien an estate held by such alien at the date of
his death, even though it had been defeasible.
When our constitution conferred upon aliens the right to inherit,
we interpret it to have conferred upon them a full and complete
right of inheritance, which would imply not only the right in
themselves to receive by such inheritance from a citizen, but
also to receive by inheritance from an alien. Were we to place
any other interpretation upon the constitution, the necessary
result would be that where an alien, under its authority, had
rightfully acquired a fee simple title to real estate, for
instance by mortgage, or in good faith in the ordinary course of
justice in the collection of a debt, and had immediately
thereafter died intestate, his heirs, if aliens, would not be
able to inherit such real estate, not because of any disability
upon their part, but because their deceased ancestor had no
inheritable blood enabling him to transmit title to them. Such
an interpretation would result in a rule of law {*346} causing
such property to escheat to the state whenever there was a
failure of heirs who were citizens of the United States. No such
contingency was contemplated by the framers of our constitution,
nor by the people who adopted the same. Our conclusion is that,
under our constitution, aliens are entitled to inherit real
estate in this state, from, by, or through ancestors whether such
ancestors be aliens or citizens. This being true, and the state
having failed to forfeit the title of Lou Graham by proceedings
in the nature of office found, at any time prior to her death,
the real estate in controversy descended to her alien heirs who
were authorized to receive the same and became entitled thereto,
and the state thereupon lost its right to declare any escheat by
Our conclusions are, (1) that the deed from the appellant Abrams
divested him of title to the property; (2) that at all times
prior to alienation of the property by Lou Graham, or prior to
her death, the state was entitled, by proceedings in the nature
of office found, to have declared a forfeiture or escheat; (3)
that the state, having failed to declare such forfeiture or
escheat prior to her death, lost its right so to do; (4) that
upon her death, the real estate descended to her alien heirs. In
view of these conclusions, the judgment of the honorable superior
court was right, and it is accordingly affirmed.
DUNBAR, J. (dissenting) --
I find myself unable to concur in the result reached in the able
and painstaking opinion of the majority. I have always been of
the opinion that the prohibitory language of the constitution was
so plain and unequivocal that it was not susceptible of
construction, and that, therefore, conveyances of real estate to
aliens should be held to be absolutely void, and I think yet that
such a construction would have simplified matters and, when
understood, {*347} would not have worked any serious hardship.
But, inasmuch as this court has twice decided that the word
"void" as used in the constitution only meant "voidable" at the
instance of the state, and in consideration of the probable fact
that titles have been obtained upon the strength of these
decisions, it would probably be unwise and unfair to disturb the
rule announced, unwarranted as I think its adoption was.
But, conceding this point, I am unable to understand how the
death of the alien in this case, Lou Graham, could change the
defeasible into an indefeasible title, for it is conceded that
during her lifetime her title was defeasible, and it is
incomprehensible to me how the heir can take a greater estate
than the ancestor was possessed of. Nor do I think that the
statute quoted and relied upon by the majority, viz., 11 and 12
Will. III, chapter 6, aids the conclusion reached. That statute
was enacted to relieve a citizen of Great Britain from a
disability and, under its terms, the citizen was placed in the
same position as a citizen of this government is placed by the
former decisions of this court to the effect that a deed from an
alien to a citizen, before action on the part of the state,
conveyed a good title to the citizen. In both cases the title to
the land finally abides in a citizen where it does not interfere
with the expressed policy of the law, which is to prohibit alien
ownership of lands. If it had been the intention of the statute
quoted to permit aliens to inherit from an alien, the enabling
provision would not have been restricted to the English subjects,
and if we base our decisions upon the construction given by the
majority to that statute, to be logical we must go further than
our former decision and hold that a deed from an alien to an
alien before demand made on the part of the state conveys an
indefeasible title to the alien. This, I think, this court will
never do, for the reason that it is opposed to both the letter
and spirit of the constitution and the common law.
It is true that, under the provisions of our constitution, an
alien may acquire title to real estate by inheritance, and so
{*348} can a citizen acquire title to real estate by inheritance,
but neither can acquire a better title than the ancestor
possessed. The aliens then -- in this case the German heirs --
obviously being unable to inherit any greater estate than that
possessed by Lou Graham at the time of her death, and the state
having made its demand, and there being no features shown by the
record which would equitably estop the state from making such
demand, it seems to me that there is no logical escape from the
conclusion that the land in question should escheat to the state.
ROOT, J., concurs with DUNBAR, J.