FELIPE RAMIRES, Respondent, v. KENT, BARTELL & CO., Appellants, 2 Cal. 558

Heydeneeldt, Justice, delivered the opinion of the Court. This was~an action for rent falling due upon a lease. The defence is set up that the lessor was a non-resident foreigner, and the lease therefore void. At the common law, a foreigner might purchase, but could not hold real estate. But after stating this principle, the question arises, how was he to be divested so as to forfeit the lands to the crown. There was but one method, and that by inquest of office. This was a proceeding by which it was found, that he was an alien and held the land, &c.

To hold land, (being an alien,) was a species of offence, and the proceeding for the forfeiture was quasi criminal. But I have seen no case in which it was held that an alien could be deprived of land, or of any rights incident to its ownership by proof of his alienage in a collateral proceeding. If the sovereign does not enforce his prerogative, it is no cause for the subject to complain. Coke says, that the estate purchased by an alien does not vest in the sovereign till “ office found;” until which the alien is seised, and may sustain actions for injuries to the property.

But it is insisted, that although the alien may hold until office found, yet he cannot make a lease. This principle is asserted by the old writers in the same manner that they assert that “ he cannot hold,” meaning in both instances that his rights are determined, and the land absolutely forfeited upon inquest of office. Besides, in the case of a tenant, the policy of the law will not permit him to contest the title of his landlord. In Blight’s Lessee et al. v.

Rochester, 7 Wheaton, 535, Chief Justice Marshall says : “ This principle originates in the relation between lessor and lessee, and so far as respects them is well established, and ought to be maintained. The title of lessee is in fact the title of lessor. He comes in by virtue of it to maintain and justify his possession. He professes to have no independent right in himself, and it' is a part of the very essence of the contract under which he claims, that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration.

He cannot be allowed to controvert the title of the lessor without disparaging his own; and he cannot set up the title of another without violating that contract by which he obtained and holds possession; and breaking that faith that he has pledged.” I have quoted this sentence of the opinion in full, because it is a clear, well written, and full exposition of the true doctrine of the common law. Testing the defence in the case before us, by the1 principles laid down, it can have no standing in Court, and the judgment below must be affirmed with costs. Murray, Chief Justice. I concur.