Newbern,

January Term, 1802.

#### Den, on the demise of Stringer vs. Philips.

TJ’JECTMENT. Francis Stringer devised thus : After tfi&, death of my mother, I giye (the lands, in question) to Ralph, Stringer in fee - provided, he or his representatives claims with-, in ten years after my mother’s death, fie cauie from Europe in. the life time of the mother andreturned and died before the war, leaving Thomas Stringer his heir at law. He died in 1795, leav-Francis Stringer, the lessor of the plaintiff, his heir at law ; Francis was then in this country.

Slade objected to the plaintiff’s recovery 5 first, because here was a condition precedent, and it is not proved that Ralph claim-, ed within ten years after the death of the mother,, therefore the estate never vested in hita» Secondly, Thomas became an aliéis., and was so at the declaration of Independence, and could not-transmit his lands by descent to the lessor.

Gaston, e contra.

Those who were not born aliens,could not; become so by a separation of empire ; and therefore, Thomas held hie lands notwithstanding the separation, and could trans-», mi; them by descent. Secondly, the claiming within ten years.. *159Krr.s not ?, condition precedent, but a conditional limitation, or a condition subsequent, which if not performed, the heir might enter. Here he did not enter after the ten years though he hail sold to Philips. The estate vested immediately on the death of the testator, for the condition was períoranable by his representative or heirs, which proves the estate vested, otherwise it could sot descend to the heirs.

Johniton, Judge.

The twenty-sixth article of our constitution declares all the lands within the bounds of this state to he-long to the collective body of the people ; making exceptions in favor of those who had already obtained grants from the king or lords proprietors ; which exceptions extend onlv to those who were parties to that instrument — the freemen of Korth-Carolma. AU others are out oí the exceptions, consequently all British subjects, and no one who was then a British subject had title to any lands within this state after that period. It will be said, why then confiscate the lands of British subjects? I answer, the confiscation acts considered that some who were then British subjects, might be willing to become citisens, and to join their efforts for the common defence. The Assembly meant to retain, and actually reserved the power of restoring to such the rights* which to them once belonged., if within the limited time they would apply for that purpose; and with respect to such as did net apply within time, it was proper, aacl indeed necessary, to appropriate their estates to the common defence ; the mode of doing which was. pointed out by those acts, without which the property would have remained unused.