Armstrong v. MorrillArmstrong v. Morrill
- Reporters:
- , , ,
- Before:
- Clifford
Lead Opinion
delivered the opinion of the cpurt.
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
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
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 sectioh 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.* Forfeiture in such a case became
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 or parcel of the same, for so much thereof as such person or persons have just title or claim to, legal or equitable, bond fide claimed, held, or derived from or under any grant of the State bearing date previous to the period of time
Section four provides, among other things, that the proprietors of such lands, their attorney or agent, of the land returned delinquent for non-payment 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 bis receipt therefor and deliver the same, on or be, fore the first day of November, 1836, to the clerk of the County Court of said county.*
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.”† 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 laud may lie, and assessed with all taxes due thereon, to be ascertained in the same manner that the back ta^es 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
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 pf Kanawha, by virtue of two land-office treasury warrants, each for one hundred thousand acres;” arid 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 1st, 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
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 iii 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
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 netfe.r did accept the same or in anywise 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.) Thai 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, oi a trust deed, like the one in question, without’ any acceptance, express or implied, by the trustee, is not
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 suf
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 lairds be 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, 1885, 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.” Pursuaut to that claim the jury were instructed, in the first place, that the defendants, to sustain that defence, “ must have held possession of the premises by residence, improvement, bultivation, or other open, notorious, and habitual acts of, ownership, for fourteen years” before
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 defence 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 non-payment 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, aud 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
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 lav^giver.
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 hold 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
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 defence, 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 defence in the case of Stoughton v. Baker,‡ 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 th^ court held that the limitation could not be extinguished by any inattention or neglect
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 rup against tbe State -has been settled for centuries, and is’ supported by all courts in all civilized coun , tries.† Suppose that-is so, still it is insisted-that the tw-o 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 defence, 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 if may bar the recovery, must be continuous and uninterrupted as well asopen, notorious, actual, exclusive, and adverse.‡ Such a possession, it is conceded, “if continued without interruption for thé 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 evi-; dencéd 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
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.‡
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.§
Viewed in any light the court is of the opinion that there is no error in the record.
Judgment affirmed.
Notes
Sessions Acts, 1835, p. 12; Staats v. Board, 10 Grattan, 400.
Wild’s Lessee v. Serpell, 10 Grattan, 405; Hale v. Branscum, Ib. 418.
Sessions Acts, 1835, pp. 12, 13.
Sessions Acts, 1843-4, p. 108.
Lewin o a 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.
Smith v. Wheeler, 1 Ventris, 128.
2 Revised Code of Virginia, 434.
Ib. 350, 483; Ib. 365.
Hopkins et al. v. Ward et al., 6 Munford, 38.
Madison v. Owens, 6 Littell’s Select Cases, 281.
4 Randolph, 865.
Kenna v. Quarrier, 3 West Virginia, 212; Hardman v. Boardman, 4 Leigh, 382.
4 Massachusetts, 526.
United States v. Hoar, 2 Mason, 312; Lindsey et al. v. Miller, 6 Peters, 673.
Angell on Limitations, 5th ed 28.
Cook v. Babcock, 11, Cushing, 210.
Bradstreet v. Huntington, 5 Peters, 402; Blood v. Wood, 1 Metcalf, 528; Ewing v Burnet, 11 Peters, 53.
Angell on Limitations, 377; Clarke v. Courtney, 5 Peters, 354; McIver v. Ragan, 2 Wheaton, 29; Kirk v. Smith, 9 Id. 288.
Brinsfitdd v. Carter, 2 Kelly, 143; Ringgold v. Malott, 1 Harris & Johnson, 316; Hall v. Gittings, 2 Id. 112.
Taylor v. Burnsides, 1 Grattan, 190.
Dissenting Opinion
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
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 1st, 1796.
I agree that neither this patent to Hopkins, nor any legislation of the State affecting it, presents any sufficient defence, to the claim of the plaintiff’ under’ the earlier patent to Albert Gallatin., But the defendants set up in the court below another defence. 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.
“ 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 12th, 1844, and that the adverse possession acquired by the defendants before November 1st, 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,- ivas 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 tbeir 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 1st, 1836, to May 8th, 1845, though it was
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 ease that the defendants held actual and continuous possession of the lauds 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, arid 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 uot 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
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
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 re. specting 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.