1. Judgment in ejectment in favor of a single plaintiff
sustained where some counts in the declaration alleged a possession
in himself alone, at the time of the ouster, though other counts
alleged the possession to have been in him jointly with others,
there having been no motion in arrest of judgment or other
objection made below to the judgment in the form mentioned, which
was one upon a verdict thus finding.
2. The mere making of a deed to one as trustee does not vest the
trustee with title if he never in any form have accepted the trust,
and to show that the trustee did not accept it, a declaration, not
under seal, but signed by him, nine years after the deed, making
known to all whom the matter concerned,
"that immediately on his receiving notice of the conveyance be
did positively refuse to accept, or to act under the trust intended
to be created, and that he had at no time since accepted the trust
or acted in any wise as trustee in relation to it"
is proper evidence to show the fact, the party being dead and
his handwriting proved.
3. Under the Act of Virginia of June 2, 1788, authorizing the
governor to issue grants with reservation of claims to lands
included within surveys then made, the reservation in patents
granted under the act excludes from the operation of the patent all
lands held by prior claimants at the date of the survey within the
exterior boundary of the patent, whether the title was only
inchoate or had been perfected by grants.
Page 81 U. S. 121
4. Where the lands of A. in the adverse possession of B. were
forfeited to the State of Virginia under its Act of 27 February,
1835, declaring forfeitures for nonpayment of taxes, but were
allowed by a subsequent and private act to be redeemed by the
original owner,
held that the forfeiture to the state
broke, in point of law, the continuity of the adverse possession,
and that such adverse possession (though it might have been in fact
continuous) having been in law thus broken, was neither restored
upon the redemption so as to be continuous in law, nor was it so
affected as that the persons holding adversely could tack the
adverse possession prior to the forfeiture to the adverse
possession subsequent to the redemption and so make out a term of
adverse possession which a statute required in order to give
title.
Lot M. Morrill brought ejectment, on the 15th of April, 1857, in
the District Court for the Western District of Virginia (now the
court below), both having circuit court jurisdiction, against
Armstrong and others, to recover 1,500 acres of land. In one count,
Morrill alleged that he was possessed of it when the defendants
wrongfully entered; in another, that James Dundas and Benjamin
Kugler were so possessed. An amended declaration alleged, in its
first court, the possession to have been jointly in Morrill,
Dundas, and Kugler, and in its second, to have been in Morrill
alone. In a new count still, the possession was alleged to have
been in William M. Tilghman.
The plaintiff's title rested on a survey to Albert Gallatin,
dated June 12, 1770, for a large tract (of which that in
controversy was said to be part), followed by a patent dated
February 10, 1786, for the tract described in the survey. In 1794,
Gallatin conveyed to Robert Morris, of Philadelphia, who, in 1795,
made a deed of the tract to Thomas Willing, John Nixon, and John
Barclay, and the survivors and survivor in fee, in trust for a land
association, called the North American Land Company. Messrs. Nixon
and Barclay accepted the trust. Mr. Willing's action appeared
before the court no otherwise than by a paper which the plaintiffs
offered in evidence, thus:
"I Thomas Willing, of the City of Philadelphia, do hereby
Page 81 U. S. 122
declare and make known unto all whom it doth or may concern,
that immediately on my receiving notice that Robert Morris had
conveyed certain estates of land to John Nixon, John Barclay, and
myself, in trust for the North American Land Company, I did
positively refuse to accept or to act under the trust so intended
to be created, and that I have at no time since accepted the said
trust, or acted in any wise as trustee in relation thereto."
"Witness my hand, this 19th day of December, 1806."
"THOMAS WILLING"
The death of Mr. Willing, who was president of the first Bank of
the United States, and otherwise, in his day, one of the best known
characters in Philadelphia, and the genuineness of his signature,
were sworn to
ex parte, by one of his sons and by two
other witnesses, and the signature was certified by the examiner of
the Supreme Court of Pennsylvania, in 1844, to have been "proved"
before him in due form of law. The instrument had also, along with
the affidavits and the examiner's certificate of probate, been
admitted to record by the clerk of Cabell County, Virginia, where
apparently some of the lands lay.
The title being in this state, the Legislature of Virginia, on
the 27th of February, 1835, passed an act, by whose second section
it was enacted that all lands not then in the actual possession of
the owner, by himself or his tenant in possession, and which had
not been entered for taxation on the books of the commissioners of
the revenue, on which the taxes had not been paid, shall become
"
forfeited to the Commonwealth," after July 1, 1836.
The 3d section of the act ran thus:
"That all right, title, and interest which may hereafter be
vested in the Commonwealth by virtue of the provisions of the
section of this act next preceding herein, shall be transferred and
vested in any and every person or persons (other than those for
whose default the same have been forfeited and their heirs or
devisees), who are now in possession of said lands, or any part or
parcel of them, for so much thereof as they have just title or
claim to, legal or equitable,
bona fide claim held or
derived under grants from the Commonwealth dated prior to
Page 81 U. S. 123
April 1, 1831, who shall have discharged all taxes duly assessed
and charged against her, him, or them upon such lands, and all
taxes that ought to have been assessed and charged thereon, from
the time when he, she, or they acquired his, her, or their title
thereto, whether legal or equitable."
Under this act, the land conveyed by Mr. Morris became
forfeited.
In 1844, the legislature passed "An act for the relief of James
Dundas and Benjamin Kugler," who had apparently become large
shareholders of the North American Land Company, and who by sundry
conveyances were then vested with whatever estate
Nixon
had been vested with by the deed of 1795, of Mr. Morris to Messrs.
Willing, Nixon, and Barclay. By this act of 1844, Dundas and Kugler
were authorized to redeem the lands forfeited under the
already-quoted act of 1835, on which redemption by them the title
vested by the forfeiture was released by the terms of the act to
them for the benefit of the land company.
The act contained, however, in its second section, this
proviso:
"
Provided, however, that nothing herein contained shall
be construed to deprive any persons having a
legal or
equitable title to these lands, by virtue of a subsequent
grant from the Commonwealth
or otherwise, of his, her, or
their right, title, or interest,
but the rights of such
claimants shall remain the same as if this act had never been
passed."
Dundas and Kugler having, in May, 1845, redeemed the land, now
put in evidence the certificate of the Auditor of Public Accounts
of Virginia, to show that the taxes had been paid in pursuance of
the act of 1844, and in 1845 the heirs of Barclay, who had survived
Nixon, conveyed all his estate in the lands to Dundas and Kugler,
as trustees of the North American Land Company. These two conveyed
to Morrill, the plaintiff.
So far as to the plaintiff's title, as to which it will be
observed that if any title passed to Mr. Willing by the deed of Mr.
Morris to him, Nixon, and Barclay, and had not passed
Page 81 U. S. 124
from him by his disclaimer of 1806, then
his estate,
whatever it was, had not been conveyed to anyone.
Now as to the defendant's title. Surveys having been made in
different parts of the state, subsequent to the treaty of 1783,
which included within their exterior boundaries smaller tracts of
prior claimants, and these being reserved to such claimants in the
certificates granted by the surveyors, doubts arose as to the
authority of the governor to grant patents in such cases. The
Legislature of Virginia accordingly passed, June 2, 1788, [
Footnote 1] an act to authorize the
governor to issue them. This act made a recital and enactment
thus:
"Whereas sundry surveys have been made in different parts of the
Commonwealth, which include in the general courses thereof, sundry
smaller tracts of
prior claimants, and which, in the
certificates granted by the surveyors of the respective counties,
are reserved to such claimants, and the governor or chief
magistrate is not authorized by law to issue grants upon such
certificates of surveys."
And it enacted:
"SECTION 1. That it shall and may be lawful for the governor to
issue grants
with reservation of claims to lands included
within such surveys, anything in any law to the contrary
notwithstanding."
With this statute in force, one Samuel M. Hopkins obtained a
survey and patent from the State of Virginia dated July 1,
1796.
The survey was for 200,000 acres, and gave boundaries including
a much larger area, closing with this statement, to-wit:
"An allowance of 227,460 acres is made in the calculation of
area of this plat for prior claims included within boundary
thereof."
The patent followed the boundaries of the survey in its grant of
the 200,000 acres, and concluded as follows:
Page 81 U. S. 125
"But it is always to be understood that the survey upon which
this grant is founded includes 227,460 acres, exclusive of the
above quantity of 200,000 acres, all of which having a preference
by law to the warrants and rights upon which this grant is founded,
liberty is reserved that the same shall be firm and valid, and may
be carried into grant or grants; and this grant shall be no bar in
either law or equity to the confirmation of the title or titles to
the same as before mentioned and reserved, with its appurtenances,
to have and to hold the said tract or parcel of land, with its
appurtenances, to the said Samuel M. Hopkins (except as before
excepted) and his heirs forever."
This title of Hopkins became afterwards vested in one
Watson.
Evidence was given tending to show that the patent to Hopkins
embraced within its exterior boundaries the entire tract claimed by
the plaintiffs, and that the defendants and those under whom they
claimed had paid the taxes and assessments thereon from the month
of September, 1834, to the year 1840.
In addition to this paper title, the defendants set up also one
founded on adverse possession. They had taken actual
bona
fide possession of the land in 1827, and had kept possession
up to November 1, 1836, when the premises in controversy were
forfeited to the state, any they continued to occupy them
throughout the term that the title was vested by the forfeiture in
the state, and so also after May, 1845 (when by the redemption the
tract was revested in its original owners), to the time when the
suit was instituted, April 15, 1857. Such possession before the
forfeiture was, however, it will be observed, not for the term of
fourteen years, the time then required by law in Virginia to bar a
recovery, nor did such possession subsequent to the date of the
revestiture, and before the bringing of this suit continue long
enough to bar a recovery. The term before the forfeiture and the
term after the revestiture tacked together constituted, however, an
adverse possession of fourteen years, and would maintain the
defense.
The defendants below -- who had objected to the reception
Page 81 U. S. 126
in evidence of what was called the disclaimer of Mr. Willing
(the paper printed
supra, pp.
81 U. S.
121-122), and had excepted to its admission --
maintained:
I. As related to the construction of the patent to Hopkins.
1. That by
its terms it covered all lands lying within
its exterior boundaries, except such as came within the reservation
contained therein; and that the burden was on the plaintiff to show
himself within the reservation, which he had not done.
2. That only lands held by inchoate equitable title, not carried
into grant when Hopkins's entry and survey were made, come within
the reservation.
3. That lands lying within the exterior boundaries of the
Hopkins grant, which had been patented prior to Hopkins's entry,
survey, and grant, would, upon becoming forfeited to the State of
Virginia, by virtue of the act of 27th February, 1835, inure to and
vest in those holding under the Hopkins patent, provided such owner
had complied with the other conditions mentioned in said act.
II. As related to their second ground of defense -- namely
adverse possession -- the defendants contended:
1. That the continuity of adverse possession as against the
prior owners was not broken by the forfeiture and vesting in the
state November 1, 1836, and continuance till redeemed by Dundas and
Kugler in 1845.
2. That if it was broken, it was restored upon the principle of
remitter or relation upon the redemption by Dundas and
Kugler. And if neither:
3. That it was competent for the defendants to tack the adverse
possession prior to the forfeiture to that subsequent to the
redemption in order to make out the fourteen years required by the
statute to bar the action.
The defendants accordingly asked the court to charge:
"
First. That the reservation in the patent to Hopkins
was of lands the titles to which were inchoate, and not of lands
which had been granted by patent previous to the date of Hopkins's
survey and entry."
"
Second. That the patent covered all lands lying within
the
Page 81 U. S. 127
exterior boundary of the survey, for which patents had issued
previous to Hopkins's entry, survey, and patent, and became a
junior grant to that issued to Gallatin."
"
Third. That if Watson was the owner of the land
described in the patent to Hopkins at the time the land in
controversy became forfeited to the Commonwealth, and if he was, on
the 27th of February, 1835, and up to the time of the forfeiture,
in the actual
bona fide possession, by himself or tenant,
of the land in controversy or any part thereof under the patent to
Hopkins, and if he, Watson, had, at the date of the forfeiture,
discharged all taxes upon the land, then that the Gallatin title
inured to and vested in Watson, and that the plaintiffs could not
recover."
"
Fourth. That if the jury are satisfied from the
evidence that adversary possession commenced before 1st of
November, 1836, and the same possession continued during the time
of the forfeiture, as well as from the 8th of May, 1845 (the time
of redemption), up to the time of the institution of this suit, and
by adding the time of adversary possession before forfeiture to the
adversary possession after redemption, makes a period of fourteen
years, then they must find for the defendants, or such of the
defendants as make out the fourteen years aforesaid."
"
Fifth. That the act of 1844, which authorized Dundas
and Kugler to redeem the lands therein specified, did not so
operate as to relieve them from the effect of the statute of
limitations, which had commenced running for the defendants before
the forfeiture, for the time the land in controversy was so
forfeited, if the jury believe the defendants continued their
possession without interruption during the forfeiture and up to the
time of redemption, and that the defendants continued the
possession to the time of the institution of this suit."
The court refused these instructions, and charged that:
"The grant to Hopkins, embracing within its exterior boundaries
227,460 acres of land, which is reserved and excepted to prior
claimants, does not operate to divest them of their title unless
they fail to show themselves entitled to the land under said
reservation, nor does the grant pass any legal title to the grantee
of the lands so reserved and excepted by it, where the same have
been previously appropriated and granted by the Commonwealth,
inasmuch as it appears that the patentee gets
Page 81 U. S. 128
all the lands he paid for, or for which he is chargeable with
taxes."
"To secure to the defendants the benefit of the forfeiture of
the Gallatin title, the jury must be satisfied that the Hopkins
grant is the younger, covers and includes the land in controversy,
and that Watson and those claiming under him were in the actual
possession of the land, claiming the same in good faith, having
discharged all the taxes due the state duly assessed and charged
against said land, as well as all taxes that should have been
assessed and charged against the same from the date of the deed
from Hopkins to Watson; otherwise, the forfeiture of the Gallatin
title would not, under the act of 1835, be transferred to Watson or
to those claiming under him."
"To defeat a recovery in this cause, under the statute of
limitations, the defendants must have held
unbroken and
uninterrupted adverse possession of the premises in
controversy for a period of fourteen years prior to the institution
of this suit."
"[The nature of this possession was explained by the court to
the jury.]"
"If Watson or those claiming under him entered upon the land
claimed by the plaintiffs in 1832, '33, '34, '35, or '36, and the
same became forfeited by the failure of the owners to enter the
same upon the books of the commissioner of the revenue of the
proper county and pay the taxes properly chargeable thereon, the
same became vested in the Commonwealth by operation of law on the
first day of November, 1836, and the possession of the defendants
upon the said first day of November, 1836, terminated, and the
possession of the land passed into and remained in the Commonwealth
until the same was transferred to Dundas and Kugler by the act of
the 12th of February, 1844, and the adverse possession acquired by
the said defendants before the first day of November, 1836, cannot
be connected with the adverse possession acquired by the defendants
after Dundas and Kugler became revested with the title of the
Commonwealth, under the act passed for their relief on the 12th of
February, 1844."
The defendants excepted to the ruling of the court refusing to
give the instructions asked by them and in giving the instructions
given.
Page 81 U. S. 129
The jury found a verdict for
Morrill, the verdict
containing nothing about Dundas, Kugler, or Tilghman. And no motion
in arrest of judgment being made, nor any objection to the finding
for Morrill alone, judgment was entered on the verdict. The
defendants brought the case here.
Page 81 U. S. 131
Mr. Justice CLIFFORD delivered the opinion of the Court.
Absolute title and the right of possession are claimed by the
plaintiff to the tract of land in controversy, and the actual
possession of the same being in the four defendants named in the
declaration, he brought an action of ejectment against them to
recover possession of the tract. He alleges in the first count of
the original declaration that on the day therein named he was
possessed in fee simple of the tract; that on the eighth of October
following, the defendants entered into the premises, and that they
unlawfully withhold from him the described tract. Quite unlike
that, the second count alleges that the primary possession of the
tract was in one James Dundas and one Benjamin Kugler, and that the
defendants unlawfully withhold the possession from those parties.
Process was served, and the defendants appeared
Page 81 U. S. 132
and demurred to the declaration, and the court sustained the
demurrer as to the second count but overruled it as to the first.
Leave to amend was granted, and an amended declaration was filed
containing three counts, of which the first is in the name of the
plaintiff and the other two persons named in the second count of
the original declaration. All three sue in that count as joint
plaintiffs, but the second count corresponds in all respects with
the first count in the original declaration, which renders it
unnecessary to describe the third except to say that the other two
persons are alleged to have been the primary possessors of the
tract and that the claim to recover possession is made in their
names as well as the claim for damages. Both parties acquiesced in
the decision of the court overruling the demurrer to the first
count and sustaining it as to the second of the original
declaration, and the defendants pleaded to the merits that they
were not guilty of withholding the premises as alleged in the new
counts filed by leave of court. Issue was tendered and joined, but
the plaintiffs, before trial, obtained leave to file a fourth count
in which it is alleged that one William M. Tilghman was the primary
possessor of the tract, and the charge in that count is that the
defendants unlawfully withhold from him the actual possession of
the same described tract of land. Subsequently the parties went to
trial and the verdict was for the plaintiff, as described in the
first count of the original declaration, and also in the second
count of the amended declaration.
By the verdict, the jury found that the plaintiff, Lot, M.
Morrill, had an estate in fee simple in the premises, except as to
a small parcel therein described, and they also assessed nominal
damages for the plaintiff. Judgment was duly rendered against the
first three defendants, the death of the other having been
suggested before the trial, and the survivors sued out a writ of
error and removed the record into this Court.
To sustain the issue on their part, the plaintiffs gave in
evidence:
(1) A copy of a survey made by the surveyor of the proper county
of the state for Albert Gallatin, assignee
Page 81 U. S. 133
of Stephen Lacoste, of fifteen hundred acres of land, part of a
land office warrant of five thousand acres, dated June 27, 1770,
bounded as therein described.
(2) Copy of the patent to Albert Gallatin, dated February 10,
1786, for the tract of land described in the survey.
(3) Also copy of a deed from Albert Gallatin, dated May 7, 1794,
to Robert Morris, conveying the same land.
(4) Deed from Robert Morris and others to Thomas Willing, John
Nixon, and John Barclay, dated March 5, 1795, conveying the
premises to them and the survivor and survivors of them and the
heirs of the survivor in trust, as more fully set forth in the deed
exhibited in the record.
(5) Certificate of William F. Taylor, auditor of public accounts
for the state, showing that James Dundas and Benjamin Kugler,
trustees as aforesaid, on the eighth of May, 1845, redeemed the
lands in question by the payment of the required sum into the
Treasury, in manner and form as more fully set forth in that
certificate, and certain others also introduced by the plaintiff
and exhibited in the bill of exceptions.
(6) Disclaimer of Thomas Willing, dated December 19, 1806, in
which he states that he did positively refuse to accept or act
under the trust, and that he had not at any time since accepted the
said trust or acted in any wise as trustee, under that deed. (7.)
Also deed dated June 17th, 1845, from John M. Barclay and others to
James Dundas and Benjamin Kugler, conveying to them all the right,
title, and interest of the two trustees who did accept the trust
created by the preceding deed.
(8) Deed dated December 1, 1854, from James Dundas and Benjamin
Kugler, trustees of the North American Land Company, to the
plaintiff in whose favor the judgment was rendered.
Evidence was also introduced by the plaintiffs showing that the
land in controversy, on the 1st day of November, 1836, became
forfeited to the state by virtue of the second section of the
statute of the state passed on the 27th of February, 1835, as
construed by the Supreme Court, or Court of Appeals, of that state.
[
Footnote 2] Forfeiture in such
a case became
Page 81 U. S. 134
absolute and complete by the failure to enter and pay the taxes
on the land and the damages in the manner therein prescribed, and
no inquisition or judicial proceeding or inquest or finding of any
kind was required to consummate such a forfeiture. [
Footnote 3] Owners or proprietors of any
tract of land lying west of the Alleghany Mountains, granted by the
state before the first day of April, 1831, were required by the act
of the twenty-seventh of February, 1835, to enter or cause to be
entered, on or before the first day of July of the succeeding year,
on the books of the Commissioners of the Revenue for the county
wherein any such tract or parcel of land may lie, all such lands as
he or they owned or claimed, through title derived, mediately or
immediately, from the state, and have the same charged with all
taxes and damages in arrear or properly chargeable thereon. They
were also required to pay and satisfy all such taxes and damages
which would not have been relinquished and exonerated by the second
section of the act of the tenth of March, 1832, had they been
returned for their delinquency prior to the passage of that act,
and the provision was that if they failed to comply with those
requirements,
"all such lands or parcels thereof not then in the actual
possession of such owner or proprietor, by himself or his tenant in
possession,
shall become forfeited to the Commonwealth
after the first day of July, eighteen hundred and thirty-six,
except only as hereinafter excepted."
Provision is also made by the third section of the act that all
right, title, and interest vested in the state by the preceding
section of the act shall be transferred and absolutely vested in
any and every person or persons, other than those for whose default
the same have been forfeited, their heirs, or devisees, now in
actual possession of said lands, or any part of parcel of the same,
for so much thereof as such person or persons have just title or
claim to, legal or equitable,
bona fide claimed, held, or
derived from or under any grant of the state bearing date previous
to the period of time
Page 81 U. S. 135
mentioned in the preamble to the second section, who shall have
discharged all taxes duly assessed and charged against him or them
upon such lands, and all taxes that ought to have been assessed and
charged thereon from the time he or they acquired title thereto,
whether legal or equitable. Appended to that section, however, is a
proviso that nothing therein contained shall be so construed as to
impair the right or title of any person or persons who have
obtained grants from the state for the same land and have regularly
paid the taxes thereon.
Section four provides, among other things, that the proprietors
of such lands, their attorney or agent, of the land returned
delinquent for nonpayment of taxes for the years eighteen hundred
and thirty-two and the succeeding year, may pay the taxes and
charges upon said lands for each of those years to the sheriff of
the county where the lands lie, and take his receipt therefor and
deliver the same, on or before the first day of November, 1836, to
the clerk of the County Court of said county. [
Footnote 4]
Beyond all doubt, the lands described in the deed of Robert
Morris and others to the grantors of the plaintiff became forfeited
to the state by reason of the failure to enter the same on the
books of the Commissioners of the Revenue, as recited in the
preamble to the Act of the twelfth of February, 1844, in which it
is also stated that the grantors of the plaintiff petitioned "the
General Assembly for permission to redeem the said lands upon the
payment of all the taxes and damages due thereon." [
Footnote 5] By the first section of that act,
they were empowered
"to redeem the whole or any part of the aforesaid lands by
having the same entered upon the books of the commissioners of the
revenue of the county wherein the land may lie, and assessed with
all taxes due thereon, to be ascertained in the same manner that
the back taxes on omitted lands are now ascertained by the several
commissioners of delinquent and forfeited lands, and paying into
the treasury of the state, on or before the first day of
Page 81 U. S. 136
June"
of the succeeding year, "the amount of the taxes so assessed,
together with six percentum per annum damages thereon." They
complied with those conditions, and the second section of the act
provided,
"That upon the payment of the taxes and damages aforesaid, all
the right, title, and interest which may have vested in the
president and directors of the Literary Fund by the said forfeiture
to such part or parts of the said lands as may be redeemed as
aforesaid shall be and the same are hereby released unto the said
James Dundas and Benjamin Kugler, . . . for the use and benefit of
the shareholders of the said North American Land Company."
Annexed to that, however, is a proviso that nothing herein
contained shall be construed to deprive any person or persons
having a legal or equitable title to any of these lands by virtue
of a subsequent grant from the state or otherwise, of his or their
right, title, or interest, but the rights of such claimants shall
remain the same as if this act had never been passed.
Documentary evidences of title were also introduced by the
defendants, as follows:
(1) The plat and certificate of a survey made for Samuel M.
Hopkins for two hundred thousand acres of land in the County of
Kanawha, dated the tenth of December, 1795, as more fully set forth
in the record, which contains the following certificate:
"Surveyed for Samuel M. Hopkins two hundred thousand acres of
land in the County of Kanawha by virtue of two land office Treasury
warrants, each for one hundred thousand acres,"
and then follows the boundaries, at the close of which is the
following statement:
"An allowance of two hundred and twenty-seven thousand four
hundred and sixty acres is made in the calculation of the area of
this plat for prior claims contained in [the] boundary
thereof."
(2) The patent, dated July 1, 1796, issued on that survey to
Samuel M. Hopkins for two hundred thousand acres by the governor of
the state. Founded as the patent is upon the certificate of survey,
it contains the same boundaries and concludes as follows:
"But it is always to be understood that the survey upon
Page 81 U. S. 137
which this grant is founded, includes two hundred and
twenty-seven thousand four hundred and sixty acres,"
exclusive of the above quantity of two hundred thousand
acres,
"all of which having a preference by law to the warrants and
rights upon which this grant is founded, liberty is reserved that
the same shall be firm and valid, and may be carried into grant or
grants,"
and this grant shall be no bar in either law or equity to the
confirmation of the title of titles to the same, as before
mentioned and reserved, with the appurtenances.
(3) Deed from Oliver Wolcott and others to James T. Watson,
dated June 22d, 1808, conveying to him, among other things, the
lands embraced in the patent to Samuel M. Hopkins.
(4) Evidence tending to show that the patent to Samuel M.
Hopkins embraced within its exterior boundaries the entire tract
claimed by the plaintiff, as shown by certain plats which were also
introduced.
(5) Parol evidence was also introduced by the defendants tending
to prove that James T. Watson, claiming under the patent to Samuel
M. Hopkins and the deed to himself, took actual and
bona
fide possession, in the year 1827, of the lands in
controversy, as well as of the coterminous surveys of Savary and
Gallatin, previously introduced in evidence, and that he, as early
as the month of September, 1834, discharged all taxes and damages
rendered against him upon said two hundred thousand acres of land,
and all that ought to have been charged against him up to the year
1840, as the same became due.
(6) Other evidence was also introduced by the defendants
deraigning the title from the last-named grantee to them or one of
them, which it is not important to notice as it is not the subject
of controversy.
First objection to the judgment has respect to the form of the
verdict, because it does not find for or against all the parties
mentioned in the different counts of the declaration, but the Court
is of the opinion that the objection is without merit, as the
finding conforms to the first count in the original declaration and
to the second count in the amended
Page 81 U. S. 138
declaration. No motion in arrest of judgment was made, and as no
such question was raised in the court below, and as the finding is
fully justified by two of the counts and by the evidence reported,
the objection is overruled.
Adopting the order of events at the trial, the next question
arises from the exception of the defendants to the ruling of the
court in admitting in evidence the paper writing called the
disclaimer of Thomas Willing, in which he states, under date of the
nineteenth of December, 1806, to the effect that he positively
refused to accept the trust intended to be created by the
before-mentioned deed to John Nixon, John Barclay, and himself, and
that he never did accept the same or in any wise act as trustee
under that instrument. Before offering that paper, the plaintiff
introduced the deed to which it relates, and having proved the
signature of the signer, the plaintiff offered the paper as tending
to show that the signer never accepted the trust described in that
deed. Two objections were made to the admissibility of the
paper:
(1) That it was insufficient as a disclaimer as it was not under
seal, but the paper was offered merely as evidence to show that the
signer never accepted the trust, and not as an instrument releasing
a vested right, which is all that need be said in reply to that
objection.
(2) That it was not admissible as evidence that he never
accepted the trust, because it was not under oath.
Appended to that paper are the affidavits of three witnesses
proving that the signature of the signer is genuine. Annexed to
that is the certificate of an examiner of the Supreme Court of the
State of Pennsylvania, dated the third of March, 1844, that the
signature of the signer of the paper was proved before him in due
form of law and also the certificate of the Clerk of Cabell County
Court, Virginia, under date of the twenty-ninth of March, 1856,
that the instrument, together with the certificates of proof, was
admitted to record.
Authorities are hardly necessary to show that the mere making of
a trust deed, like the one in question, without any acceptance,
express or implied, by the trustee, is not
Page 81 U. S. 139
sufficient to vest in the trustee the title to the land
mentioned in the deed, and that parol proof is admissible in such a
case to show that the trust was never accepted. On the other hand,
it is equally clear that if the trust is accepted, though but for a
moment, parol proof to show a release of the title to the trust
estate cannot be admitted. [
Footnote 6] Offered as the paper writing was, not as the
release of a vested right but merely as evidence tending to prove
that the signer never accepted the trust created by the deed, no
doubt is entertained that the evidence was properly admitted, as it
is well settled law that every conveyance which depends upon the
act of the parties is imperfect for vesting the title without the
assent of the parties to the same, either express or implied.
[
Footnote 7] Two of the
trustees accepted the trust and proceeded to execute it, but it
does not appear that the signer of the certificate ever joined with
them in any act, either in managing or disposing of the estate.
Obviously the weight of the evidence was for the jury, nor does it
appear that other testimony to the same point was not introduced,
as only so much is reported in the bill of exceptions as was
necessary to raise the question of law. Admitted as it was as a
verbal act tending to show that the trust was not accepted, no
doubt is entertained that the ruling was correct.
Exceptions were also taken by the defendants to the refusal of
the court to instruct the jury as requested, and also to the
instructions given in respect to the merits of the controversy.
Very great doubts are entertained whether the evidence introduced
by the defendants was such that the court would have been warranted
in giving the first, second, or third instructions as requested,
but the judgment of the court will not be placed upon that ground,
as it is clear that the instructions given, if correct, were in all
respects sufficient
Page 81 U. S. 140
to dispose of the controversy, and as the verdict was for the
plaintiff, the only material inquiry remaining is whether the law
was correctly given to the jury in those instructions.
Two hundred and twenty-seven thousand four hundred and sixty
acres of land were embraced in the patent to Samuel M. Hopkins
which was reserved and excepted to prior claimants, and the court,
in its fourth instruction, told the jury that the patent did not
operate to divest such prior claimants of their title unless they
failed to show themselves entitled to the land under the said
reservation; that the patent did not pass any legal title to the
patentee of said lands, so reserved and excepted by it, where the
same had been previously appropriated and granted by the state,
inasmuch as it appeared that the patentee got all the lands he paid
for or for which he was charged with taxes. What the defendants
claimed was that the title under the Gallatin patent was forfeited
and merged in the Watson claim under the act of the twenty-seventh
of February, 1835, but the jury were instructed that the defendants
could not derive any benefit from the supposed forfeiture unless
the jury were satisfied that the patent of Hopkins, which was the
junior patent, covered and included the land in controversy, and
that Watson and those claiming under him were in the actual
possession of the said land, claiming the same in good faith,
having discharged all the taxes due to the state, duly assessed and
charged against the same, from the date of the deed from Hopkins to
Watson.
Apart from the merits, the defendants set up the statute of
limitations, and insisted that the action could not be maintained
because, as they alleged, they had "held unbroken and uninterrupted
adverse possession of the premises in controversy for a period of
fourteen years prior to the institution of the suit." Pursuant to
that claim, the jury were instructed in the first place that the
defendants, to sustain that defense, "must have held possession of
the premises by residence, improvement, cultivation, or other open,
notorious, and habitual acts of ownership, for fourteen years"
before
Page 81 U. S. 141
the commencement of the action; but if the jury find that the
defendant, Armstrong, resided there and was the owner of a lot in
the Town of Ripley, and in the immediate vicinity thereof he owned
a tract of woodland, part of the land in controversy, from which
land, claiming it as his own, he, for the time mentioned, openly
cut and hauled his necessary supply of fuel, and also the timber
necessary for the construction of various houses on the lot, and
also enclosed certain portions of the land, such acts and use are
equivalent to adversary possession from the time such acts and use
were commenced.
But the evidence showed that the land, on the first day of
November, 1836, became forfeited to the state, as matter of law, by
the failure of the owners to enter the same upon the books of the
Commissioners of the Revenue of the proper county, and pay the
taxes properly chargeable thereon, and the court upon that subject
instructed the jury that if they so found from the evidence, and
that the possession passed into and remained in the state until the
title was transferred to the grantors of the plaintiff, the defense
under the statute of limitations was not sustained, as the adverse
possession acquired by the defendants before the first day of
November, 1836, cannot be connected with the adverse possession
acquired by them after the grantors of the plaintiff became vested
with the title of the state, under the before-mentioned act of the
assembly passed for their relief.
Two principal errors are alleged in the instructions:
(1) That the court did not instruct the jury that the land, when
it became forfeited for non-entry on the books of the Commissioners
of the Revenue, and for nonpayment of taxes and damages, was
transferred to and became vested in the owners of the Hopkins
patent, under the third section of the act declaring the
forfeiture.
(2) That the court erred in the instruction to the jury that the
statute of limitations ceased to run when the land became forfeited
to the state, and that the period of adverse possession before the
forfeiture took place could not be added to the period which
elapsed before the suit was commenced, subsequent to the time the
title
Page 81 U. S. 142
under the act of the assembly was conveyed to the plaintiff's
grantors, to make the required term of fourteen years to bar the
title.
Such a construction of the act of assembly as the one first
claimed certainly could not have been adopted unless it can be held
that the proviso embraced in the Hopkins patent does not afford any
protection to the owners of lands included in that survey, where
the patents had been previously issued, which is the construction
assumed by the defendants. They contend that the proviso only
excludes from the operation of the grant the
"lands within its exterior boundaries, the titles to which
were inchoate, and not lands which had been granted by
patents previous to the date of that survey and entry,"
which is a construction not to be sustained if another
consistent with the language employed can be adopted better
calculated to promote justice and to carry into effect the plain
intent of the lawgiver.
On the other hand, the plaintiff contends that the reservation
excludes from the operation of the patent all lands held by them at
the date of the survey, within the exterior boundary of the patent,
whether the title was only inchoate or had been perfected by
grants, which seems to be the more reasonable construction, and not
inconsistent with the language employed.
By the terms of the reservation, it is stated that the survey
includes two hundred and twenty-seven thousand four hundred and
sixty acres beyond the quantity granted to the patentee, in respect
to all of which "liberty is reserved that
the same shall be
firm and valid, and may be carried into grant or grants,"
which means that all shall
be firm and valid, whether held
by complete or incomplete titles, but that such parts as are held
by incomplete titles may be carried into grant, and that the patent
founded on that survey shall be no bar in either law or equity to
the confirmation of the titles to the reserved lands included
within the exterior bounds of that survey.
Surveys had been made in different parts of the state,
subsequent to the treaty of peace, that included smaller
Page 81 U. S. 143
tracts of prior claimants within their exterior boundaries, and
which were reserved to such claimants in the certificates granted
by the surveyors. Doubts arose as to the authority of the governor
to grant patents in such cases, and to remove those doubts the
general assembly, June 2, 1778, enacted that it shall and may be
lawful for the governor to issue grants with reservation of claims
to lands included in such surveys, anything in any law to the
contrary notwithstanding. [
Footnote
8] Prior to the passage of that law, the authority to issue
such grants was at least doubtful, even if the power existed at
all, and it is clear that the assembly never intended that any such
grant should cover any prior title, whether complete or incomplete,
within the exterior boundaries of the survey. [
Footnote 9] Supported as the proposition is by
repeated decisions of the state court, it is adopted without
hesitation, as any other rule would work very great injustice.
[
Footnote 10] Where the
exterior boundaries of a survey under that law upon which a patent
is founded includes tracts belonging to prior claimants, the
patentee cannot in such a case recover in ejectment without showing
that the tract claimed by the defendant is not within the bounds of
the excluded claims, which is a direct authority that the reserved
lands in a case like the present did not pass to the patentee.
[
Footnote 11] Even more
decisive also is the case of
Nichols v. Covey, [
Footnote 12] in which it is
determined that where a patent is issued in pursuance of the act of
the second of June, 1788, which includes in its general courses a
prior claim, it does not pass to the patentee the title of the
state to the lands covered by such prior claim. On the contrary,
the title of the patentee in respect to such a tract is not only
subject to the title of the prior claimant, but if that title is
only a prior entry and it becomes vacated by neglect to procure a
survey and return the plat, anyone may lay a warrant on the same,
as in other cases of vacant and unappropriated lands. Exactly the
same
Page 81 U. S. 144
rule is laid down by this Court in the case of
Scott v.
Ratliffe, [
Footnote 13]
in which the opinion was given by the Chief Justice. He said such
patents have been always held valid, so far as respects the land
not excluded, but to pass no legal title to the land excepted from
the grant, as the lands are in this case in the
habendum
of the patent, and not a doubt is entertained that the rule there
laid down is the correct rule upon the subject. [
Footnote 14]
2. Sufficient evidence was introduced by the defendants to show
that they or some of them took adversary possession of the premises
in controversy prior to the forfeiture of the same to the state,
and that they continued to occupy the same throughout the period
that the title was vested in the state, and after the state
conveyed the tract to the grantors of the plaintiff to the time
when the suit was instituted, but it is conceded that such
adversary possession before the forfeiture was not for the period
of fourteen years, the time then required by law to bar a recovery,
nor did such adversary possession subsequent to the date of the
conveyance by the state to the grantors of the plaintiff and before
the service of process, continue long enough to bar a recovery.
Both combined would maintain the defense, and of course if the
statute continued to run during the period the title was vested in
the state by the forfeiture, the instruction given to the jury was
erroneous and the judgment must be reversed. Adverse possession was
the defense in the case of
Stoughton v. Baker, [
Footnote 15] where the question
arose in respect to the right of the defendant to an ancient grant
which was subject to an implied limitation, and it was contended
that he had been so long possessed of the premises that the state
had no right to interfere in any form of legal remedy. Possession
and uninterrupted enjoyment for a very long period was proved in
that case, but the court held that the limitation could not be
extinguished by any inattention or neglect
Page 81 U. S. 145
in compelling the owner to comply with it, for no laches is to
be imputed to the government and against it no time runs so as to
bar the public rights, which is not more nor less than another form
of words for expressing the ancient rule of the common law, that
time does not run against the state. [
Footnote 16]
Argument to show that the statute of limitations ceased to run
when the forfeiture attached and the title became vested in the
state can hardly be necessary, as the rule that time does not run
against the state has been settled for centuries and is supported
by all courts in all civilized countries. [
Footnote 17] Suppose that is so, still it is
insisted that the two periods -- that is, the period of adverse
possession before the forfeiture and the period subsequent to the
conveyance by the state to the plaintiff or those under whom he
claims -- may be added together and considered as one entire period
for the purpose of maintaining the defense, and it is clear if that
proposition is correct, the instruction given was erroneous. But
the proposition cannot be admitted, as it is well settled law that
the possession, in order that it may bar the recovery, must be
continuous and uninterrupted as well as open, notorious, actual,
exclusive, and adverse. [
Footnote 18] Such a possession, it is conceded, "if
continued without interruption for the whole period which is
prescribed by the statute for the enforcement of the right of
entry, is evidence of a fee," and bars the right of recovery.
Independently of positive statute law, such a possession affords a
presumption that all the claimants to the land acquiesce in the
claim so evidenced and enforced, or that they forbear for some
substantial reason to controvert the claim of the possessor or to
disturb him in the enjoyment of the premises. Secret possession
will not do, as publicity and notoriety are necessary as evidence
of notice and to put those claiming an adverse
Page 81 U. S. 146
interest upon inquiry. [
Footnote 19] Mere occupation is not sufficient, but the
possession must be adverse, as seizin and possession are supposed
to be coextensive with the right, and that the possession continues
till the party is ousted thereof by an actual possession in another
under a claim of right. [
Footnote 20]
Continuity of possession is also one of the essential requisites
to constitute such an adverse possession as will be of efficacy
under the statute of limitations. Whenever a party quits the
possession the seizin of the true owner is restored, and a
subsequent wrongful entry by another constitutes a new disseizin,
and it is equally well settled that if the continuity of possession
is broken before the expiration of the period of time prescribed by
the statute of limitations, an entry within that time destroys the
efficacy of all prior possession, so that to gain a title under the
statute, a new adverse possession for the time limited must be
taken for that purpose. [
Footnote 21]
Beyond all question, the case of
Hall v. Gittings, one
of the cases just cited, presented the same question as that
involved in the case before the Court, and the decision was that
the forfeiture to the state within the period necessary to give
effect to the statute did have the effect to break the continuity
of adverse possession, and prevented the operation of the statute
bar. [
Footnote 22]
Viewed in any light, the Court is of the opinion that there is
no error in the record.
Judgment affirmed.
[
Footnote 1]
Second Revised Code of Virginia, p. 434, ch. 58.
[
Footnote 2]
Sessions Acts, 1835, p. 12;
Staats v. Board, 10 Grattan
400.
[
Footnote 3]
Wild's Lessee v. Serpell, 10 Grattan 405;
Hale v.
Branscum, ib., 418.
[
Footnote 4]
Sessions Acts, 1835, pp. 12, 13.
[
Footnote 5]
Sessions Acts, 1843-1844, p. 108.
[
Footnote 6]
Lewin on Trusts (4th ed.) 150;
Robinson v. Pett, 3 P.
Williams 251;
Doe v. Harris, 16 Meeson & Welsby 517;
Doyle v. Blake, 2 Schoale & Lefroy 239;
Stacey v.
Elph, 1 Mylne & Keene 195; Tiff. & Bull. on Trusts
532.
[
Footnote 7]
Smith v. Wheeler, 1 Ventris 128.
[
Footnote 8]
2 Revised Code of Virginia 434.
[
Footnote 9]
Ib., 350, 483;
ib., 365.
[
Footnote 10]
Hopkins v. Ward, 6 Munford 38.
[
Footnote 11]
Madison v. Owens, 6 Littell's Select Cases 281.
[
Footnote 12]
4 Randolph 865.
[
Footnote 13]
30 U. S. 5 Pet.
86.
[
Footnote 14]
Kenna v. Quarrier, 3 W.Va. 212;
Hardman v.
Boardman, 4 Leigh 382.
[
Footnote 15]
4 Mass. 526.
[
Footnote 16]
United States v. Hoar, 2 Mason 312;
Lindsey v.
Miller, 6 Pet. 673.
[
Footnote 17]
Angell on Limitations, 5th ed. 28.
[
Footnote 18]
Cook v. Babcock, 11 Cushing 210.
[
Footnote 19]
Bradstreet v.
Huntington, 5 Pet. 402;
Blood v. Wood, 1
Metcalf 528;
Ewing v.
Burnet, 11 Pet. 53.
[
Footnote 20]
Angell on Limitations 377;
Clarke v.
Courtney, 5 Pet. 354;
McIver
v. Ragan, 2 Wheat. 29;
Kirk
v. Smith, 9 Wheat. 288.
[
Footnote 21]
Brinsfield v. Carter, 2 Kelly 143;
Ringgold v.
Malott, 1 Harris & Johnson 316;
Hall v. Gittings,
2
id. 112.
[
Footnote 22]
Taylor v. Burnsides, 1 Grattan 190.
MR. JUSTICE STRONG, with whom concurred JUSTICES DAVIS and
BRADLEY, dissenting.
In the view which a majority of my brethren take of one branch
of this case I am unable to concur.
The plaintiff in the court below claimed title to the land
Page 81 U. S. 147
in controversy under a patent of the state of Virginia, granted
to Albert Gallatin on the 10th day of February, 1786. It does not
appear that any possession was ever taken under this patent, but on
the 1st of November, 1836, the lands were forfeited to the state
for failure by the owners to make entry thereof upon the
commissioners' books for taxation. On the 12th of February, 1844,
however, an act of the legislature was passed for the relief of
Dundas and Kugler, who had become the grantees of the Gallatin
right, by which they were allowed to redeem the lands on the
payment of all taxes and damages due thereon, and on the 8th day of
May, 1845, the redemption was made. The plaintiff has no other
title.
The defendants claim as grantees by sundry mesne conveyances
through James T. Watson from Samuel M. Hopkins, who also obtained a
patent from the state, dated July 1, 1796.
I agree that neither this patent to Hopkins nor any legislation
of the state affecting it presents any sufficient defense to the
claim of the plaintiff under the earlier patent to Albert Gallatin.
But the defendants set up in the court below another defense. It
was that they were protected by the statute of limitations. They
submitted evidence tending to prove that they, or those through
whom they claim, took actual and adversary possession of the lands
in 1827, and that such possession had been continued until the
institution of this suit. Relying upon this, they presented to the
court the following two points (among others), and requested that
they might be given as instructions to the jury:
"
Fourth. If the jury are satisfied from the evidence
that adversary possession commenced before the 1st of November,
1836, and the same possession continued during the time of the
forfeiture, as well as from the 8th of May, 1845, the time of
redemption, up to the time of the institution of this suit, and by
adding the time of adversary possession before forfeiture to the
adversary possession after redemption makes a period of fourteen
years, then they must find for the defendants, or such of the
defendants as make out the fourteen years as aforesaid. "
Page 81 U. S. 148
"
Fifth. That the act of 1844, which authorized Dundas
and Kugler to redeem the lands therein specified, did not so
operate as to relieve them from the effect of the statute of
limitation, which had commenced running for the defendants before
the forfeiture, if the jury believed the defendants continued their
possession without interruption during the forfeiture, and up to
the time of redemption, and that the defendants continued the
possession up to the time of the institution of this suit."
Both these points the court refused to affirm, and on the
contrary charged the jury that on the 1st of November, 1836, the
possession of the defendants terminated and passed into and
remained in the Commonwealth until the same was transferred to
Dundas and Kugler by the Act of February 12, 1844, and that the
adverse possession acquired by the defendants before November 1,
1836, could not be connected with the adverse possession acquired
by the defendants after Dundas and Kugler became revested with the
title of the Commonwealth. Herein, I think, was clear error.
Plainly, had there been no forfeiture, the adversary possession of
the defendants, kept up continuously during fourteen years, would
have protected them against any right of entry by the plaintiff.
The forfeiture did not disturb their actual possession, nor their
possession under claim of exclusive right in themselves, which is
what is meant by adversary. I agree that their possession between
the forfeiture and the redemption gave them no right as against the
state. This is not because their possession was not adversary, nor
because the actual possession was transferred by law to the
Commonwealth, but because adversary possession is unavailing to bar
any rights of the state, it not being subject to statutes of
limitation unless expressly named. The defendants here are not
asserting their adversary possession against the state. The
controversy is between them and one claiming under the Gallatin
title, which, though at one time forfeited to the state, was
allowed to be redeemed. They claim nothing against the state on
account of their possession from November 1, 1836, to May 8, 1845,
though it was
Page 81 U. S. 149
adversary and uninterrupted either by abandonment or by the
entry of the state or of the plaintiff.
But why is not that possession operative against the plaintiff?
I think it is. As between him and the defendants, nothing but an
entry or an action brought was sufficient to change the character
of their possession or break its continuity. It is not, however,
necessary to discuss this. It is sufficient for this case that the
defendants held actual and continuous possession of the lands from
1827 until 1857, when this suit was brought; that the possession
was always adversary to the plaintiff; that he never took any steps
to disturb it, and that he has had more than fourteen years within
which he might have asserted his right.
Concede that the plaintiff's right of entry was suspended by the
forfeiture, still it revived when the lands were redeemed, and if
the defendants' possession was adverse to his right and continuous
during fourteen years in which he might have entered or asserted
his right by action, I am unable to perceive why he is not
barred.
The fact that an owner's right of entry has been suspended,
after the statute has commenced running against him, can be of no
importance if he has had the statutory period within which to bring
his action against the disseizor in adverse possession. If this is
not so, then war might not only suspend the running of the statute,
but render of no effect all adverse possession held before the war
commenced. This has never been asserted. It is the uninterrupted,
adverse possession alone which creates the bar. It is not essential
to it that the right to enter or to bring suit should have suffered
no interruption.
Every reason for applying the statute, which would have existed
had there been no forfeiture, and consequently no suspension of the
plaintiff's right to enter, exists in full force now. Statutes of
limitation are dictated mainly by two considerations: one that it
is public policy to discourage stale claims, and the other that it
is not to be presumed that one having a right would delay asserting
it for a long period in full view of another's wrongful
interference with
Page 81 U. S. 150
it. Hence the period was fixed at fourteen years in Virginia and
West Virginia, within which a party out of possession may bring his
action of ejectment against one in possession holding adversely.
Assuming that the jury would have found the facts as stated in the
points proposed, the plaintiff has had that entire period, and the
public policy, as well as the presumptions arising from his laches,
which gave birth to the statute, apply in all their potency to his
case. And the statute is not only a bar to the assertion of a right
of entry upon one in adverse possession after the expiration of the
period fixed, but it gives a title to the disseizor. The law casts
title upon him, and assures to him the privilege of asserting it,
either aggressively or defensively. For the acquisition of this
right the defendants have done all that the law contemplates. They
entered under a claim of exclusive right -- that is, adversarily --
and they held that adversary possession continuously until this
suit was brought. That the Gallatin title was forfeited during
their occupancy was no fault of theirs. It was due to the wrongful
neglect of the plaintiff or those under whom he claims to enter the
lands upon the commissioners' books and to pay the taxes. Can he
now make use of a forfeiture, caused by his own neglect, to obtain
or preserve rights which confessedly would have no existence but
for his neglect? Yet this was in substance the instruction given to
the jury. His laches, resulting in a forfeiture, is to have the
same effect as an entry would have had or as action brought. Thus
he is allowed to secure an advantage through his own default. Thus
he is allowed to make use of his own unlawful nonfeasance to break
the continuity of the defendants' hostile possession. I cannot
assent to such a view of the law.
Had the Commonwealth, after the forfeiture of the Gallatin
title, granted the land to some other grantee, I agree that such
grantee would not be affected by any adverse possession of the
defendants held by them before the forfeiture of less duration than
fourteen years. But such was not the case. The holders of the
Gallatin title were allowed to redeem. The nature of the
transaction by which they became
Page 81 U. S. 151
reinvested with the title is plainly seen in the act of February
12, 1844, passed for their relief. Its preamble recited that the
lands had become forfeited by reason of failure to enter the same
on the books of the commissioners of the revenue for taxation, and
that Dundas and Kugler, the trustees of the North American Land
Company, for whose use the title had been held, had petitioned for
permission to "redeem" said lands, on payment of the taxes
assessed, together with six percentum per annum damages thereon.
The first section authorized them to "redeem" on those terms on or
before June 1, 1845. The second section "released" unto them, for
the benefit of the shareholders of the company, all the right,
title, and interest which had been forfeited upon the payment of
said taxes and damages. The third section authorized a judgment
against the lands for the amount of costs incurred, and for
reasonable compensation to any commissioner of delinquent and
forfeited lands by reason of his having prepared the redeemed lands
for sale, and the fourth section directed all proceedings by such
commissioners to be suspended until after June 1, 1845. It thus
appears that the redemption was not the acquisition of a new title.
It was the common case of a waiver of a forfeiture. Dundas and
Kugler, after the redemption, held by their old right, the Gallatin
patent, and it was this right which the plaintiff gave in evidence
and asserted in the present action. No new patent was issued to
Dundas and Kugler. The act of 1844 contains no words of grant to
them, and its avowed purpose was to place them in the same
position, as holders of the title and trustees of the company,
which they occupied before the forfeiture.
I am therefore of the opinion that the circuit court erred in
refusing to affirm the defendants' fourth and fifth points and also
in the instruction which was given to the jury respecting the
effect of the statute of limitations. For this reason, I think the
judgment should be reversed, and that a
venire de novo
should be awarded.
