Armstrong v. Morrill,
81 U.S. 120 (1871)

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U.S. Supreme Court

Armstrong v. Morrill, 81 U.S. 14 Wall. 120 120 (1871)

Armstrong v. Morrill

81 U.S. 120


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."


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

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