3 Port. 182 | Ala. | 1836
Several questions were submitted to us by counsel for each of the parties, but as one, only, is, in our opinion, decisive of the case, we shall confine our examination to it, and upon the determination of it rest our judgment. For the- defendant in error, who brought the action in the Circuit Court of Dallas county, to recover damages for a trespass upon the land described in his declaration, it has not been asserted that he has a right to the action, without proof either of a title to, or of the actual possession of the land. There is no testimony that Taylor ever had the actual possession of the land. His claim to the action was put upon the ground that he had the title, and, as the effect, of it, the constructive possession of the land, and, therefore, as there was no adverse possession, he could maintain this action of trespass, upon the authority of a previous decision of this Court.
There is a distinction between forfeitures at common law and under statutes. The rule of the former requires the party entitled to the forfeiture, to do an act which the law directs, to derive any benefit from the forfeiture. But if a statute prescribes that a forfeiture shall be the consequence of an act, which is prohibited by it, or of an omission to do what is required, any one who may incur a forfeiture will be deprived of all his interest in, and title to, the estate, upon which the forfeiture operates, at the time the forfeiture accrued, and is disabled, by law, from retaining the title or other interest until the party, entitled to the forfeiture, shall assert his light to it. The common law allows a discretion, and gives a forfeiture to the party entitled to it if he choose to take it. But such a statute gives no discretion; it determines the will of the party entitled to the forfeiture, and makes the act, when it is done or omitted, an absolute and complete forfeiture.
Against the effect of sucha forfeiture, there is relief but in an act of the legislative power, by which the statute that directed the forfeiture was enacted. The fee simple in the land embraced by the cate, in this case, was in the United States, while the certificate was effectual; and the forfeiture, from the failure to pay the balance of the purchase money,
The effect of the forfeiture was the extinguishment of his interest, and the title was then in the United States, without the incumbrance of his interest. As the trespass alleged, was committed after the forfeiture, we are of opinion that the instructions of the Circuit Court were erroneous, and that Taylor, upon the evidence, had no right to the action. That a forfeiture prescribed by a statute, has the effect which we ascribe to it, was determined by this court in the case of the Trustees of the University of Alabama against Winston, in the construction of statutes of this State, similar in respect to the sale and forfeiture of lands, to the acts of Congress, on which the credit system was founded. In that case, it was decided also, that the trustees were bound to aver and prove that they prevented a forfeiture by commencing, as the statute required, a suit against the purchaser within three months after an instalment of the purchase money was due.
Let the judgment be reversed and the cause remanded.
Stew.229.
3 Cranch 349, 351—8 id. 405, 408, 409-11 John R. 331, 332—14 id. 128-3D. & East. 65.