1. The Court reprehends severely the practice of counsel in
excepting to instructions as a whole instead of excepting as they
ought, if they except at all, to each instruction specifically.
Referring to
Rogers v. The
Marshal, 1 Wall. 644, &c., it calls attention
anew to the penalty which may attend this unprofessional and
slatternly mode of bringing instructions below before this Court --
the penalty, to-wit, that the exception to the whole series of
propositions may be overruled, no matter how wrong some may be, if
any one of them all be correct, and when, if counsel had excepted
specifically, a different result might have followed.
2. Where a statute gives to county courts authority and
jurisdiction to hear and determine all cases at common law or in
chancery within their respective counties, and
"all such other
matters as by particular statute"
Page 69 U. S. 329
might be made cognizable therein, such county courts are courts
of general jurisdiction, and when jurisdiction of a matter such as
power to declare a redemption of land from forfeiture for taxes (in
regard to which the court could act only "by particular statute")
is so given to it -- parties, a subject matter for consideration, a
judgment to be given &c., being all in view and provided for by
the particular statute -- the general rule about the indulgence of
presumptions not inconsistent with the record in favor of the
jurisdiction prevails in regard to proceedings under the statute.
At any rate, a judgment under it declaring lands redeemed cannot be
questioned collaterally.
3. Statutes are to be considered as acting prospectively unless
the contrary is declared or implied in them. The 21st and 22d
sections of the Virginia statute of 1 April, 1831, "concerning
lands returned delinquent for the nonpayment of taxes," were not
confined to delinquencies prior to the passing of that statute.
4. Under the said sections, land is rightly exonerated by the
county court of the county in which alone it was always taxed, even
though a part of the land lay of later times in another county -- a
new one made out of such former county.
5. Under the Code of Virginia, ch. 135, § 2, ejectment may be
properly brought against persons who have made entries and surveys
of any part of the land in controversy and are setting up claims to
it, though not in occupation of it at the time suit is brought.
6. Where parties enter upon land and take possession without
title or claim or color of title, such occupation is subservient to
the paramount title, not adverse to it.
Tyler brought ejectment against Harvey and others in the
District Court of the United States for the Western District of
Virginia to recover one hundred thousand acres of land in what was
formerly
Kanawha County alone, though afterwards partly
Kanawha and
partly Mason County, the last-named county
having been created out of the former. The defendants set up that
this title had been interrupted by a forfeiture of the land for
nonpayment of taxes to the commonwealth, and the vesting of it in
the President and Directors of the Literary Fund under a statute of
Virginia passed 1 April, 1831, "concerning lands returned
delinquent for the nonpayment of taxes," and there was no doubt
that this was so unless the forfeiture had been relieved by certain
proceedings in the
County Court of Kanawha County, under
two sections -- the 21st and 22d of the same act.
The provisions of these two sections were, in their material
Page 69 U. S. 330
parts, as follows, and the reader will observe how far they
authorize redemption for delinquencies prior to the date of the act
of 1 April, 1831; and how far for any term
after the
passage of it.
"§ 21. If any person having title to any tract of land returned
delinquent for the nonpayment of taxes, and not heretofore vested
in the President and Directors of the Literary Fund, and having
legal possession thereof, shall prove, by satisfactory evidence, to
the court of the county in which such land may lie, before the
first day of January, 1833, that prior to the passage of this act
he was a
bona fide purchaser of such land so claimed by
him; that he has a deed for the same, which was duly recorded
before the passage of this act; and that he has paid all the
purchase money therefor, or so much thereof as not to leave in his
hands sufficient to satisfy and pay the taxes and damages in
arrears and unpaid at the date of his purchase; or that he fairly
derives title by, through, or under some person so having purchased
and paid the purchase money, it shall be the duty of the court to
render judgment in favor of such person exonerating the land from
all arrears of taxes, and the damages thereon anterior to the date
of such purchase, except so much as the balance of the purchase
money remaining unpaid will be sufficient to pay &c.; but no
judgment shall be rendered except in presence of the attorney for
the commonwealth or of some other attorney appointed by the court
to defend the interest of the commonwealth. . . . No judgment in
favor of such applicant shall be of any validity unless it appears
on the record that the attorney for the commonwealth, or the
attorney appointed as aforesaid, appeared to defend the
application."
"§ 22. And if any person having legal possession of and title to
any tract of land returned delinquent for nonpayment of taxes, and
not heretofore vested in the President and Directors of the
Literary Fund, shall show, by satisfactory evidence to the court of
the county where the said land may lie, at any time before the
first day of January, 1833, that the taxes in arrear and due
thereon are not in arrear or due, either having been erroneously
charged on the books of the commissioner or having been actually
paid, or that in the years for which said land or lot was so
returned delinquent, there was sufficient property on
Page 69 U. S. 331
the premises whereon the collector might have made distress, it
shall be the duty of the court, under the limitations, injunctions,
and conditions contained in the preceding section, to render
judgment exonerating such land from the taxes so erroneously
charged thereupon."
The records of the County Court of
Kanawha disclosed
next the following entries:
"At a county court held for
Kanawha County, at the
courthouse thereof, the 14th day of November, 1831, present David
Ruffner, Andrew Donnally, John Slack, and James McFarland,
gentlemen, justices &c."
"
Order. -- This day came Matthias Bruen, having title
to one tract or parcel of land containing one hundred thousand
acres, lying
partly in the County of Mason and
party
in the County of Kanawha, the said tract of one hundred
thousand acres being also the same charged in said lists of lands
and lots to the Bank of Delaware, John Hollingsworth, and John
Shallcross &c., and returned delinquent in said names for the
year 1815. And the said Matthias, having proved by evidence
satisfactory to this court that prior to the passage of the act
entitled 'An act concerning lands returned delinquent for the
nonpayment of taxes,' &c., passed April 1, 1831, he was a
bona fide purchaser of said tract and that he has a deed
or deeds which was or were duly recorded in the clerk's office of
the County Court of Kanawha County previous to the passage of the
aforesaid act, and that he has paid all the purchase money
therefor, having no portion thereof in his hands to satisfy and pay
the taxes and damages in arrears and unpaid at the date of his
purchase or any part thereof, and further that he is in legal
possession of the said tract and was so in possession at the time
of the passage of the act before recited."
"Therefore this court,
in the presence of the attorney
prosecuting the pleas of the commonwealth in said court, who hath
appeared and defended this application, upon full consideration of
all the matters and things on either side alleged, doth render
judgment in favor of the said Matthias Bruen, and doth order,
adjudge, and decree that the said tract of land above mentioned be
released, discharged, and exonerated from all the arrears of taxes
and the damages charged or chargeable thereon anterior to the 14th
of
Page 69 U. S. 332
April, 1815, the date of the purchase thereof by the said
Matthias."
"And the said Matthias Bruen, having further proved by evidence
satisfactory to this Court that during all the years
1815-'16-'17-'18-'19 and 1820, the years for which the said tract
is charged to the said Matthias, and in his name returned
delinquent for the nonpayment of taxes, there was sufficient
property whereon the sheriff or collector might have made distress,
and out of which the said taxes for the said several years might
have been made and collected. Thereupon this Court,
in the
presence of the attorney prosecuting the pleas of the commonwealth
in the said court, who hath also appeared and defended this
application, upon full consideration of all the matters and things
on either side alleged, doth further adjudge, order, and
decree, that the said tract of land be released, discharged, and
exonerated from all the arrears of taxes and the damages charged or
chargeable thereon for the said several years 1815-'16-' 17-'19,
and 1820, whether the same be charged to the said Matthias or to
any other person or persons whatsoever, all of which is ordered to
be certified according to the act of Assembly in that case made and
provided."
An order, dated 12th of November, and similar to this last,
exonerated the tract, upon the latter ground, for the years from
1821 to 1831,
inclusive.
The first point in the case was as to the effect of these orders
-- that is to say, whether, under the statute, they exonerated the
land -- and this again depended, perhaps, part on the character of
this County Court of Kanawha, and to what extent it was or was not
a court of general jurisdiction. On this point it appeared that
these county courts derived their powers from a statute of Virginia
authorizing them, whose seventh and eighth sections read thus:
"§ 7. The justices of every such court, or any four of them, as
aforesaid, shall and may take cognizance of, and are hereby
declared to have power, authority, and jurisdiction to hear and
determine all cases whatsoever now pending or which shall hereafter
be brought in any of said courts at common law or in
Page 69 U. S. 333
chancery, within their respective counties and corporations, and
all such other matters as by any particular statute is or shall be
made cognizable therein."
"§ 8. That said courts shall be holden four times per year for
the trial of all presentments, criminal prosecutions, suits at
common law and in chancery, where the sum or value in controversy
exceeds twenty dollars, or four hundred pounds of tobacco."
It depended also, in part, perhaps, on another question,
connected with the location of the land. As already intimated, the
land was situated in what was originally Kanawha County, but out of
which another county, Mason had been of later times created. At the
time of these proceedings (A.D. 1831) in the County Court of
Kanawha, the land had come to lie in part in this new County of
Mason. It had, however, for the term of thirty-one years
-- the term for which the exoneration extended -- been always
listed for taxation as one tract, and as being in the County of
Kanawha, and, as the bill of exceptions showed, had been
charged with taxes
nowhere but in that county. Moreover,
the Auditor of the State of Virginia, after these orders of the
Kanawha County Court were made, entered an exoneration of taxes as
to the
entire tract.
Upon this whole part of the case, the court below instructed the
jury that the two orders "did exonerate the taxes delinquent on the
land in controversy for the year 1831 and all years
prior
thereto."
The second point -- one also which arose on the charge of the
court -- was, as to whether certain parties,
not in
possession, but nevertheless made defendants, were properly
made so.
The code of Virginia [
Footnote
1] enacts as follows:
"The person actually occupying the premises shall be named
defendant in the declaration. If they be not occupied, the action
must be against some person
exercising ownership thereon,
or
Page 69 U. S. 334
claiming title thereto or some
interest
therein at the commencement of the suit."
Under this statute, the court, on a request to charge in a
particular way, charged in substance that if some of the defendants
had made
entries and
surveys of any part of the
land in controversy, under which they were
setting up claims to
it, they were properly sued, although not in occupation of it
at the time the suit was instituted.
The third point in the case related to adverse possession, and
was whether the court had rightly charged in saying that if the
jury found plaintiff's title was the paramount title, and that the
defendants entered and took possession
without any title, or
claim, or color of title to any part, that such entry and
possession was not adverse to the plaintiff's title, but was
subservient thereto.
The case was twice elaborately argued in this Court. Below, as
here, the suit was contested with determination, and the record
which was brought up showed that the defendants had asked for no
less than FORTY-SIX different instructions! They ran over twelve
pages, and were submitted in three series of requests. The first
series, comprising twenty-four propositions of law, the second
series twelve, and the third ten, and it rather appeared from the
bill of exceptions that each of these series was prayed for, and
the action of the court on them excepted to, as a whole. Three only
of the forty-six were granted. The court below granted also three
of the plaintiffs' requests, in which three, in fact, the substance
of all that was argued was comprised.
Verdict and judgment having been given for the plaintiffs, the
case was brought here by the other side on error.
Page 69 U. S. 338
MR. JUSTICE MILLER delivered the opinion of the Court.
This case has been twice argued before this Court. It involves
the title to a hundred thousand acres of land. The oral argument
has been able on both sides, but the manner in which the record
brings the case before us, is one which we have repeatedly
condemned, and which has sometimes precluded us from the
consideration of points relied on by counsel as error.
It is a fair inference from the bill of exceptions that each of
the three series of instructions refused was prayed and excepted to
as a whole. If so, the proceeding was not only a clear violation of
a rule of this Court; but if any proposition in the series ought to
have been rejected, then the court did not err in refusing the
prayer, although there might have been propositions in the series,
which, if asked separately, ought to have been given. The exception
is a general one to the refusing the prayer of the plaintiffs in
error, and to the granting the prayer of the defendants in error.
[
Footnote 2]
Page 69 U. S. 339
However it might pain us to see injustice perpetuated by a
judgment which we are precluded from reviewing by the absence of
proper exceptions to the action of the court below, justice itself,
and fairness to the court which makes the rulings complained of,
require that the attention of that court shall be specifically
called to the precise point to which exception is taken, that it
may have an opportunity to reconsider the matter and remove the
ground of exception. This opportunity is not given when pages of
instructions are asked in one prayer, and if refused as a whole,
are excepted to as a whole. We may rightfully expect of counsel who
prepare cases for this Court that they shall pay some attention to
the rules which we have framed for their guidance in that
preparation; as well as to those principles of law referred to,
which are necessary to prevent the prayer that counsel has a right
to make to the court for laying down the law to the jury, from
being used as a snare to the court, and an instrument for
perverting justice. These observations, which are of daily
application in this Court, are fully justified by a record, which
shows forty-six propositions asked of a court at once, as a charge
to a jury.
In the present case, while we are relieved from the necessity of
examining the forty-three propositions asked by plaintiffs in error
(three of the forty-six were granted), we are also relieved from
any apprehension that this will work injustice; because the only
three propositions asked and granted on the part of defendants in
error, and to which by a little liberality we are able to hold the
exceptions sufficient, involve all the questions of law which are
entitled to consideration, if not all which were argued in the
case.
One branch of the controversy -- the one of engrossing
importance -- turns upon the validity of the orders made by the
County Court of Kanawha County.
The court below instructed the jury that these orders "did
exonerate the taxes delinquent on the land in controversy for the
year 1831, and all years prior thereto," and it is the soundness of
this instruction which we are first to consider.
Page 69 U. S. 340
The plaintiffs in error contend that these orders are void, and
therefore nullities, because the records of them do not show that
several matters were proven, which are essential to the right of
the party to have his lands thus exonerated.
Ten or twelve of these omissions are urged as applicable to one
or the other, or both, these orders; some of which are founded in
misconception of what the record contains; some on the absence of
averments merely negative, such as the failure to allege that the
land had not been vested in the Trustees of the Literary Fund, and
all of them, except one or two which will be noticed hereafter,
concern matters, which may well be supposed to have been
substantiated by proof before the court if we are at liberty to
make any presumptions in favor of the validity of the orders of the
court.
This brings us to the issue of law in the case. The plaintiffs
in error maintain:
1. That the county court which made these orders is a court of
inferior and special jurisdiction, and therefore every fact
essential to authorize it to make such orders, must appear upon the
record which the court makes of the transaction, or
2. If the court is not held to be of this inferior and special
character, that the statute confers upon it in this class of cases
only such special jurisdiction, and that its orders are subject to
the same rule in testing their validity.
It is certainly true that there is a class of tribunals,
exercising to some extent judicial functions, of which it may be
said, in the language of Chief Justice Marshall, that they are
"courts of a special and limited jurisdiction, which are created
on such principles, that their judgments taken alone are entirely
disregarded, and the proceedings must show their jurisdiction.
[
Footnote 3]"
The first inquiry, then, on this subject, must be into the
character of the County Court of Kanawha County, which rendered
these judgments of exoneration.
The powers of these courts in Virginia were originally
Page 69 U. S. 341
conferred and prescribed by the act of 1792, and are to be found
fully stated in section 7th of the act of 1819. [
Footnote 4]
"The justices of every such court, or any four of them, as
aforesaid, shall and may take cognizance of, and are hereby
declared to have power, authority, and jurisdiction, to hear and
determine, all cases whatsoever now pending, or which shall
hereafter be brought in any of said courts, at common law or in
chancery, within their respective counties and corporations, and
all such other matters as by any particular statute is or shall be
made cognizable therein."
Section 8 provides that said courts shall be holden four times
per year for the trial
"of all presentments, criminal prosecutions, suits at common
law, and in chancery, where the sum or value in controversy exceeds
twenty dollars, or four hundred pounds of tobacco."
It is impossible to come to any other conclusion from this
statute, than that the county courts of Virginia were courts of
general jurisdiction, and were inferior only in the sense that
their judgments might be revised by some appellate tribunal. They
were in no sense courts of special jurisdiction, and were unlike
county courts in other states -- Kentucky, for example, in
reference to which a Kentucky decision has been quoted to us --
which had no common law or chancery jurisdiction, whose principal
functions were ministerial, in reference to the roads, bridges, and
finances of the county, to which are sometimes added those judicial
functions which relate to wills and the administration of the
estates of decedents. These all differ widely from the county
courts of Virginia, which have all those powers of general
jurisdiction usually found in circuit courts, courts of common
pleas, courts of chancery, and others of similar character.
In reference to all these the general rule is that every
presumption not inconsistent with the record, is to be indulged in
favor of their jurisdiction, and their judgments, however
erroneous, cannot be questioned, when introduced
Page 69 U. S. 342
collaterally, unless it be shown affirmatively that they had no
jurisdiction of the case. [
Footnote
5]
In regard to the second proposition, it is not so easy to
determine in all cases the principle which is to govern.
The jurisdiction which is now exercised by the common law courts
in this country, is, in a very large proportion, dependent upon
special statutes conferring it. Many of these statutes create, for
the first time, the rights which the court is called upon to
enforce, and many of them prescribe with minuteness the mode in
which those rights are to be pursued in the courts. Many of the
powers thus granted to the court are not only at variance with the
common law, but often in derogation of that law.
In all cases where the new powers, thus conferred, are to be
brought into action in the usual form of common law or chancery
proceedings, we apprehend there can be little doubt that the same
presumptions as to the jurisdiction of the court and the
conclusiveness of its action will be made, as in cases falling more
strictly within the usual powers of the court. On the other hand,
powers may be conferred on the court and duties required of it, to
be exercised in a special and often summary manner, in which the
order or judgment of the court can only be supported by a record
which shows that it had jurisdiction of the case. The line between
these two classes of cases may not be very well defined nor easily
ascertained at all times. There is, however, one principle
underlying all these various classes of cases, which may be relied
on to carry us through them all when we can be sure of its
application. It is that whenever it appears that a court possessing
judicial powers has rightfully obtained jurisdiction of a cause,
all its subsequent proceedings are valid, however erroneous they
may be, until they are reversed on error, or set aside by some
direct proceeding for that purpose. The only difficulty in applying
the rule, is to ascertain the question of jurisdiction.
Page 69 U. S. 343
Former adjudications of this Court have done much to throw light
upon this difficult point, and to settle the rules by which it may
be determined. We will notice a few of the most important.
One of the earliest is the case of
Kempe's
Lessee v. Kennedy, 5 Cranch 173. Certain acts of
the Legislature of New Jersey confiscated the property of those who
had sided with Great Britain in the War of the Revolution. They
conferred the power of ascertaining that fact by inquest instead of
by regular indictment, in the inferior court of common pleas of
each county. In an action of ejectment, brought in the circuit
court of the United States by Grace Kempe, the defendants set up a
title acquired under proceedings thus authorized. In this Court, on
error, it was argued that, as to these proceedings, the court must
be considered as one of special and limited jurisdiction. But the
Court, by Chief Justice Marshall, said:
"This act [the statute of New Jersey], cannot, it is conceived,
be fairly construed to convert the court of common pleas into a
court of limited jurisdiction in cases of treason. . . . In the
particular case of Grace Kempe, the inquest is found in the form
prescribed by law, and by persons authorized to find it. The court
was constituted according to law, and if an offense punishable by
the law had been in fact committed, the accused was amenable to its
jurisdiction, so far as respects her property in New Jersey. The
question whether this offense was or was not committed, that is
whether the inquest which was substituted for a verdict on an
indictment, did or did not show that the offense had been
committed, was a question which the court was competent to decide.
The judgment was erroneous, but it was a judgment, and until
reversed cannot be disregarded."
In the case of
Voorhees v. Bank of the United States,
[
Footnote 6] the validity of
certain proceedings in attachment were called in question on the
ground that the record of the court of common pleas, in Ohio, in
which the proceedings were had,
Page 69 U. S. 344
did not show certain steps which the law required. The defendant
in the attachment proceedings was a nonresident; yet his land had
been levied on, condemned, and sold, without an affidavit, without
notice by publication, without calling him three times, at there
different terms of the court, and without waiting twelve months
from the return of the writ, before the sale; all of which are
specially required in the act regulating the proceedings. Here was
a case of special and stringent proceedings
in rem, in the
absence of jurisdiction over the person, where material provisions
of the law, for the protection of defendant's rights, were omitted,
so far as the record showed. "It is contended," said this
Court,
"by the counsel for plaintiffs in error, that all the
requisitions of the law are conditions precedent, which must not
only be performed before the power of the court to order a sale, or
of the auditors to execute it, can arise, but such performance must
appear in the record."
This is precisely what is contended for in the case now before
us, and the circumstances of this case and of that are remarkably
similar in their relation to the principles which we are now
discussing. The Court said in reply to this:
"The provisions of the law do not prescribe what shall be deemed
evidence that such acts have been done, or direct that their
performance shall appear upon the record. . . . We do not think it
necessary to examine the record in the attachment suit, for
evidence that the acts alleged to have been omitted appear therein
to have been done. Assuming the contrary to be the case, the merits
of the present controversy are narrowed to the single question,
whether this omission invalidates the sale. The several courts of
common pleas of Ohio, at the time of these proceedings, were courts
of general jurisdiction, to which was added, by the act of 1805,
the power to issue writs of attachment, and order a sale of the
property attached, on certain conditions; no objection, therefore,
can be made to their jurisdiction over the case, the cause of
action, or the property attached. . . . There is no principle of
law better settled, than that every act of a court of competent
jurisdiction shall be presumed to have been rightly
Page 69 U. S. 345
done, till the contrary appears. . . . If the defendant's
objection can be sustained, it will be on the ground that this
judgment is false, and that the order of sale was not executed
according to law, because the evidence of its execution is not in
the record. The same reason would equally apply to the nonresidence
of the defendant within the state, the existence of the debt due
the plaintiff or any other creditor, which is the basis of the
whole proceedings."
In the case of
Thompson v. Tolmie, [
Footnote 7] a sale of real estate by three orphans
of this city was assailed in this Court on similar grounds: the
Court says:
"Those proceedings were brought before the court collaterally,
and are by no means open to all the exceptions which might be taken
on a direct appeal. They may well be considered judicial
proceedings; they were commenced in a court of justice, carried on
under the supervisory power of the court to receiving its final
ratification. The general and well settled rule of law in such
cases is that when the proceedings are collaterally drawn in
question, and it appears on the face of them that the subject
matter was within the jurisdiction of the court, they are voidable
only. . . . If there is a total want of jurisdiction, the
proceedings are void, and a mere nullity, and confer no right and
afford no justification, and may be rejected when collaterally
drawn in question."
Both these latter cases are cited, reaffirmed, and the doctrine
amplified, in
Grignon v. Astor. [
Footnote 8]
The application of these principles to the case before us will
be very obvious upon a slight examination of sections 21 and 22 of
the act of 1831, which confers on the county courts the power to
exonerate lands from delinquent taxes. We have already seen that
they are courts of general jurisdiction. These sections authorize
them, when certain facts are proved by the owner of the land, "to
render judgment in favor of such person, exonerating the land;"
"but no judgment shall be rendered except in the presence of the
attorney for the commonwealth, or some other attorney
Page 69 U. S. 346
appointed by the court to defend the interest of the
commonwealth. If the application shall fail, judgment shall be
rendered against the applicant, and he shall be adjudged to pay
costs."
Now here are all the usual accompaniments of a judicial
proceeding; a court of competent jurisdiction, parties, plaintiff
and defendant -- namely the applicant and the state; a subject
matter of consideration, to-wit, the exoneration of the land from
delinquent taxes, and a judgment of the court, either establishing
such exoneration, or that the claim to it is not a rightful claim,
and in either case conclusive of that claim. Care is taken that the
commonwealth shall be represented by capable counsel; and the only
fact required by the act to appear on the record is the presence of
such counsel. That the appearance of this fact on the record is
made the only one essential to the validity of the judgment, is
strong evidence that the other facts, on which the judgment of the
court may depend, need not so appear.
The transcripts of the judgments of exoneration produced in this
case, show that there were proper parties before the court, that
the subject matter of the exoneration of the land from delinquent
taxes was before it, and that it rendered judgments exonerating it
from all delinquent taxes. Can it be required to give validity to
these judgments, that the record shall show that every fact was
proved, upon which the judgment of the court must be supposed to
rest? Such a ruling would overturn every decision made by this
Court upon that class of cases, from that of
Kempe's Lessee v.
Kennedy, already referred to, down to the present time.
It is urged that the 22d section of the act of 1831 was not
intended to confer the right of exoneration as to taxes delinquent
after the passage of the act.
If this were true, we do not feel sure that, under the
principles just considered, it could invalidate the judgment of the
court. It would be a mistake as to the law, which would make the
judgment erroneous -- but would it, therefore, be void? We do not,
however, concur in this construction of the act. There is nothing
in its language which limits this
Page 69 U. S. 347
relief to past delinquency, and it is a rule of construction
that all statutes are to be considered prospective unless the
language is express to the contrary or there is a necessary
implication to that effect. The powers of the court over this
subject, it is true, is limited in point of duration to three
years; but that period extends beyond the time when the taxes for
the year 1831 would become delinquent, and would therefore seem to
embrace them unless expressly excluded. The third section of the
Act of December 16, 1831, and the second section of the act of
March 10, 1832, both recognize and proceed upon this construction
of these sections, and remove any doubt which may have existed on
that subject.
It was in proof that at the time these judgments were rendered,
a considerable part of this one hundred thousand acre tract lay in
other counties which had been created out of the County of Kanawha,
and it is said, as to so much of said land, the judgments of the
county court of that county were without jurisdiction.
The tract had always been listed for taxation as a unit, in the
County of Kanawha, for the entire period of thirty-one years or
more, to which the
exoneration extended. The bill of
exceptions states that the land was uniformly charged with taxes
there, and
not elsewhere. It was these delinquent lists,
returned regularly by the auditor of the state to the county from
whence they came, from which the owner desired to be relieved. An
application to the court of a county where they did not exist would
have been unavailing. It would be sticking in the bark to say, that
a party entitled to relief could not get it in one county because
all the land did not lie there; nor in any other county, because no
evidence of such delinquency appeared in the tax lists of the
latter to be exonerated. The land in question was charged with
taxes nowhere but in Kanawha County, and in that county it was
proper that the
exoneration should be entered.
It is to be remarked of all these objections to the judgments of
exoneration, that the parties who made them show no patent, or
other title, from the State of Virginia, and are
Page 69 U. S. 348
setting up defects in those judgments, of which neither the
State of Virginia, which was a party to the proceedings, nor the
Trustees of the Literary Fund, who were entitled if they were
invalid, have ever complained, or sought to take advantage. On the
contrary, the Auditor of the State of Virginia, its official
accounting officer, recognized these judgments as valid, by making
entries in his books, to the effect that the taxes were released by
them.
We are of opinion, therefore, that the first instruction given
at request of plaintiffs was correct.
The second was to the effect that if some of the defendants had
made entries and surveys of any part of the land in controversy,
under which they were setting up claims to it, they were properly
sued, although not in occupation of it at the time the suit was
instituted.
The Code of Virginia, as well as that of several other states,
allows the action of ejectment to be brought against persons
claiming title, or interests in the property, although not in
possession. It says: [
Footnote
9]
"The person actually occupying the premises shall be named
defendant in the declaration. If they be not occupied, the action
must be against some person exercising ownership thereon, or
claiming title thereto, or some interest therein, at the
commencement of the suit."
If then there was a part of the tract claimed by some person, on
which there was no occupant, the case existed which the second
clause of the section provides for. The policy of this act is
obvious. It is that person out of possession, who set up false
claims to land, may by a suit in ejectment, which is the legal and
proper mode of trying title, have that claim brought to this test.
The act provides that such a judgment is conclusive against all the
parties, and thus the purpose of the law to quiet title by a
verdict and judgment in such cases, is rendered effectual. The
language of the code of New York is identical with that of Virginia
on this subject. And the construction we have given to it was held
to be the true one, by the Supreme Court of the former state.
[
Footnote 10]
Page 69 U. S. 349
The third and last instruction given at the instance of
plaintiffs, had reference to the question of adverse possession, in
its relation to the statute of limitations. Its purport was that if
plaintiffs' title was found to be the paramount title, and any of
the defendants entered upon and took possession of the land,
without title or claim, or color of title, that such
occupancy was not adverse to the title of plaintiffs, but
subservient thereto.
We think this law to be too well settled to need argument to
sustain it. There must be title somewhere to all land in this
country. Either in the Government or in someone deriving title from
the government, state, or national. Anyone in possession, with no
claim to the land whatever, must in presumption of law be in
possession in amity with and in subservience to that title. Where
there is no claim of right, the possession cannot be adverse to the
true title. Such is the rule given as recently as 1854, by the
Court of Appeals of Virginia, in the case of
Kincheloe v.
Tracewells. [
Footnote
11] The Court there says:
"An entry by one upon land in possession, actual or constructive
of another, in order to operate as an ouster, and gain possession
to the parties entering, must be accompanied by a claim of title.
[
Footnote 12]"
We have thus examined the points made by the exceptions to the
instructions asked by plaintiffs and given by the court. If there
are points made on the instructions prayed by defendants and
refused by the court not embraced in those we have discussed, they
are of minor importance, and do not affect the merits of the
case.
Judgment affirmed.
[
See supra, p. <|69 U.S. 210|>210,
Florentine
v. Barton. -- REP.]
[
Footnote 1]
Chap. 135, § 2.
[
Footnote 2]
Rogers v.
Marshal, 1 Wall. 644;
Johnson v.
Jones, 1 Black 209; Rule 38 of the Rules of this
Court.
[
Footnote 3]
Kempe's Lessee v.
Kennedy, 5 Cranch 173.
[
Footnote 4]
1 Revised Code 246.
[
Footnote 5]
Kempe's Lessee v.
Kennedy, 5 Cranch 173;
Voorhees
v. Bank of United States, 10 Pet. 449;
Ex Parte
Watkins, 3 Pet. 193;
Grignon v.
Astor, 2 How. 319.
[
Footnote 6]
35 U. S. 10 Pet.
449.
[
Footnote 7]
27 U. S. 2 Pet.
157.
[
Footnote 8]
43 U. S. 2 How.
319.
[
Footnote 9]
Chapter 135, § 2.
[
Footnote 10]
Banyer v. Empie, 5 Hill 48.
[
Footnote 11]
11 Grattan 605.
[
Footnote 12]
Society v. Town of
Pawlet, 4 Pet. 504;
Ewing v.
Burnett, 11 Pet. 52; Angell on Limitations § 384,
390.
