95 Va. 58 | Va. | 1897
Lead Opinion
delivered the opinion of the court.
EranMin Stearns instituted an action of ejectment against William H. Harman, defendant, for the recovery of a tract of land. When the case came on for trial upon the defendant’s plea of “not guilty,” a jury was waived, and all matters, both of law and fact, by consent of counsel, were submitted to the court, which, after hearing the evidence, entered a judgment for the plaintiff for the premises in the declaration mentioned.
This apparently constitutes a complete chain of title from the Commonwealth to the defendant in error, but the exceptions presented by the plaintiff in error to this court point out alleged defects, which it now becomes our duty to investigate.
It seems that Robert Morris was in 1801 adjudicated a bankrupt by proceedings under the Bankrupt Act of 1800 instituted in the District Court of the United States for the Pennsylvania district, and which are still of record in that court. The commissioners provided for in the Bankruptcy Act were appointed with the approbation of the creditors, and Robert Morris was, by the commission, duly adjudicated a bankrupt, in November, 1801, and this action of the commission was, in December of the same year, approved by the judge of the District Court.
Assignees in bankruptcy were selected by the commissioners to whom all the property of Robert Morris was conveyed “in trust, nevertheless, and to and for the several uses of all such creditors of the said Robert Morris, who have already sought or shall hereafter in due time come in and seek relief by virtue of
As far as the record discloses, nothing was ever done hy the commissioners and assignees in bankruptcy in execution of the duty reposed in them to collect the assets of Eobert Morris, and apply the proceeds thereof to the satisfaction of his creditors. Eobert Morris died, as we have seen, in 1807. In November, 1825, Henry Morris filed his petition in the District Court for the Eastern District of Pennsylvania, asking that the judgment of bankruptcy against Eobert Morris might be vacated. He avers in his petition that in July, 1801, upon the petition of John Houston, a commission of bankruptcy was awarded against his father, Eobert Morris, directed to John Hallowell, Joseph Hopkinson, and Thomas Compston; that the commission was opened July 31, 1801, and that Eobert Morris was on the same day declared a bankrupt; that after due advertising the creditors met and proved debts to a large amount, and made choice of assignees in bankruptcy, to whom the whole of the estate and effects of the bankrupt were assigned; that the assignees do not appear to have accepted the trust; and that there has been nothing further done in the premises; that, at the time of his bankruptcy, Eobert Morris was possessed of a large estate, real and personal, which, in consequence of the neglect of the creditors and assignees in not duly prosecuting the commission, has been wasted without benefit to the creditors or the bankrupt. The petition prays that the commission of bankruptcy may be vacated and superseded.
Notice having been given to the petitioning creditors, the court on September 17, 1830, entered an order “that the commission issued in this case be vacated and superseded according to the prayer of the petition.”
Erom that time forward this order of the District Court has remained unquestioned, and, as it is to be presumed, been accepted and acquiesced in by all concerned. It is true that it was entered after the Bankruptcy Act of 1800 had been repealed,
The attempt here is to attack and impeach this judgment or decree of the District Court of Pennsylvania, in a collateral proceeding, nearly seventy years after it was entered. We are of opinion that the record of the proceedings in bankruptcy, constituting, as they do, one entire and connected suit from the filing of the petition to the final settlement of the cause, was admissible evidence to be considered by the court exercising in this case the functions also of a jury, and, in the absence of anything to the contrary, justified the court in disregarding the adjudication of the bankruptcy of Robert Morris in so far as that was relied upon to defeat the title of the devisees under his will. See Sandusky v. National Bank, 23 Wall. 289.
Objection is taken to the deed, from Maria Mixon; first, because the deed is a technical release, and Mrs. Mixon not appearing to have been in possession, it could not pass title.
We think, in answer to this objection, that it is only necessary to cite section 2439 of the Code, which declares that “whenever in any deed there shall be used the words: ‘The said grantor releases to the said grantee all his claims upon the said lands,’ such deed shall be construed as if it set forth that the grantor hath remised, released, and forever quitted claim, unto the grantee, his heirs, or assigns all right, title, and interest whatsoever, both at law and in equity, in or to the lands and premises granted (or released), or intended so to be, so that neither he nor his personal representative, his heirs, or assigns, shall at any time hereafter, have, claim, challenge, or demand the said lands and premises, or any part thereof, in any manner whatever.”
Secondly, because it appears from the will of Robert Morris that in 1804 Maria Mixon was a married woman.
Nor do we think the objection to the deed from Kent and Caldwell, commissioners, to Pranldin Stearns, can he sustained. Conceding that the deed is not in exact accordance with the directions of the court, yet it appears that the commissioners reported what they had done to the court, which confirmed the' deed, and it cannot now be assailed in this manner. Evans v. Spurgin, 6 Gratt. 107; Robertson v. Smith, 94 Va. 250.
The most serious contention on the part of the plaintiff in error is that these lands were forfeited to the State for nonpayment of taxes, and have never been redeemed.
In the investigation of this branch of the case especially we
Without discussing in detail the several statutes applicable to the subject, it appeará that by the act of 1832 all delinquent taxes were released, including those for land which had vested in the literary fund, where the lands lay east of the Blue Eidge, and those upon the land lying west of the Blue Eidge, where the amount was not in excess of $20.00. It reduced the interest on all delinquent taxes from ten to six per cent., and made all lands, which prior thereto had vested in the literary fund, redeemable at any time before the 1st of April, 1834, by paying into the Treasury the taxes and damages for which the same were forfeited, together with six per centum per annum from the time of such forfeiture. The act of March 11, 1834, extended the time for redemption to the 1st of October, 1834.
There are numerous certificates from the Auditor’s office introduced into the record, which tend to prove that this land, though forfeited, had been redeemed. Morton Marye, Auditor of Public Accounts, certifies as of the 2nd of March, 1887, that this land was returned delinquent for the years 1796, 1797, 1798, 1799, and 1800; that it does not appear on,the land books from 1800 to 1826; that when it again reappears during the
Robert Morris, 75,000; 1,500 part of tbis tract redeemed 21st March, 1834, by Jeremiah Price for tbe years 179 6-’97-’98. Taxes and damages on tbis tract $110, paid in part of tbe redemption of tbis tract 29th June, 1829, for tbe years 1796-’97-’98, and from 1815 to 1828, and then follows another:
Robert Morris, 75,000; tax and damages on tbis tract, $125.31, in redemption of tbe residue of tbe tract 12th September, 1834, for tbe years 1796, 1797, 1798.
It will be recalled in connection with tbis payment on tbe 12th of September, 1834, that by tbe act of March 11, 1834, tbe time for tbe redemption was extended to tbe 1st day of October of that year.
By a certificate from tbe same Auditor of date 19th of September, 1889, it appears that on tbe 21st day of March, 1834, tbe sum of $5.45 was paid by Jeremiah Price for tbe redemption of part thereof, on account of taxes and damages thereon, for tbe years 1796, 1797, 1798, 1799, and 1800; that on tbe 29th of June, 1829, tbe sum of $110.00 was paid towards tbe redemption of tbe said tract on account of taxes and damages thereon for tbe years 1796, 1797, 1798, 1799 and 1800; and that on tbe 12th of September, 1834, tbe sum of $125.00 was paid by Messrs. Hugh and J. J. Pry, for a company of gentlemen in New York, for tbe years 1796,1797, and 1798.
Tbe following language from tbe opinion of tbe Circuit Court Judge seems to be fully borne out by tbe facts. Speaking of tbe act of March 11, 1834, be says: “If we follow its language, to have redeemed tbis land would have simply required tbe payment into tbe treasury of tbe taxes and damages for which it was forfeited, with interest thereon from tbe time of tbe forfeiture, i. e., $54.95 (taxes, and 10 per cent, damages), with interest either from 1798, time of forfeiture, or from 1815,
There are several other certificates from the Auditor’s office containing entries of a lite tenor with those above given, but enough has been quoted to show that the evidence was admissible as tending to prove the redemption of these lands 'from the forfeiture which they had incurred for non-payment of taxes to the 0 ommonwealth.
It is true that the introduction of these certificates was objected to on the ground that it does not appear that the payments were made by any one claiming title under Robert or Mary Morris, but, if made at all, were made by strangers to the title claimed by the plaintiff. We are of opinion that, where land had been forfeited to the Commonwealth for non-payment of taxes, and the taxes were subsequently paid in redemption of the land, and were received by the Commonwealth for that purpose, a jury, or, in this case, the court, would be warranted in inferring under the circumstances that the payment was made by or for some one having the right to redeem in the absence of anything to the contrary.
This brings us to the consideration of the only remaining question. In the grant from the Commonwealth to Robert Morris there occurs the following reservation:
“But it is always to be understood that the survey upon which this grant is founded, includes 1,500 acres, which, having a preference by law to the warrants and rights upon which Robert Morris’ survey is founded, liberty is reserved that said 1,500 acres shall be firm and valid, and shall have the same effect, 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 as before mentioned and reserved with its appurtenances.”
And in the deed from Thurston and wife to Shelly, there is the following provision:
“But nothing in this covenant shall be construed to entitle said Edward Shelly to claim of said Phineas Thurston anything
And in the deed from Kent and Caldwell to the defendant in error there is conveyed so much of the tract of 75,000 acres, in the bill and proceedings mentioned, as was conveyed by Phineas Thurston to Edward Shelly by deed of January 1, 1873.
The plaintiff in error claims that by force of the reservation and provisions in the grant from the Commonwealth, and in the deeds from Thurston to Shelly, and from Kent and Caldwell to Stearns, it was the duty of the defendant in error to show that the lands claimed by him, though embraced within the exterior boundaries of the grant from the Commonwealth, were not covered by any of the reservations contained in that grant, and the deeds referred to.
The contention of the defendant in error is that if the land sued for was within one of the reservations set out in the title papers, it was a proper matter of defence, and that the burden of showing it was upon the defendant in the court below, and the plaintiff in error here.
The question, therefore, resolves itself into this: Upon whom was the burden of proof ? Upon the plaintiff to show that the land for which he sued was within the boundaries of his title papers, and not within the reservation therein contained; or was it upon the defendant to show that the land in controversy was within the reservations?
This case was decided in the Circuit Court in 1894. It held that the burden of proof was upon the defendant. This court, in the case of Reusens v. Lawson, 91 Va., at page 226, considered and decided this question. In the opinion all the cases relied upon by the Judge of the Circuit Court and by the defendant in error here were carefully reviewed, and the conclusion reached, “both upon principle and authority, that where the exterior boundaries of a survey upon which a grant or deed is founded include lands which have been excepted from
This rule may operate harshly in some instances. There are few rules that do not; but in answer to this objection urged to the decision in Reusens v. Lawson, supra, and the cases there cited, we cannot do better than again quote from it.
“It is said that to require the plaintiff to assume such a burden imposes upon him a great hardship, if not an impossible task. If it does, it was self-imposed. He, or those under whom he claims, took the grant with the exception in it. There would have been little difficulty in locating the excepted lands, and the grantee’s own land, when the grant issued. The facts upon which the exception depends were within the knowledge of the •plaintiff, or those under whom he claims. If he, or those under whom he claims, have delayed ascertaining the boundaries of these excepted lands, and the boundaries of his own land, until the means of doing so have been lessened or lost, he cannot complain, as it is the result of his or their negligence. At least, well settled rules of law ought not to be departed from in order that a party in possession of land may be deprived of that possession by another who does not show that he has the legal title to or the right to the possession of it.”
That case, we repeat, reviews all the authorities accessible to us upon this subject, and all that have been cited by counsel for defendant in error in this case, with the exception of Roan Mountain Steel & Iron Co. v. Edwards, (Supreme Court of North Carolina), 14 S. E. Rep. at page 861, and the case of Gudger v. Hensly, 82 N. C. 481.
Upon the whole case, we are of opinion that there is no error in the judgment of the Circuit Court, save upon the point last stated, but that the court erred in holding that the burden of proof was upon the plaintiff in error to show that the land sued for was covered by the exceptions and reservation disclosed in the title papers of the defendant in error, and its judgment must, for this reason, be reversed, and this court will enter such judgment as the Circuit Court ought to have rendered.
Rehearing
Upon a Petition to Rehear.
This case was disposed of at a former day of this term, and is now before us upon a petition to rehear the judgment then rendered.
A plaintiff in ejectment must recover upon the strength of his own title. He cannot rely upon any infirmity in the title of the defendant.
Plaintiff in the court below accepted a title, the first h'rtlc in the chain of which consisted of a patent granted by the Commonwealth for a tract of land, described by metes and bounds, containing 75,000 acres. In the grant there is the following reservation: “It is always to be understood that the survey upon which this grant is founded, includes 1,500 acres, which, having a preference by law to the warrants and rights upon which Robert Morris’ survey is founded, liberty is reserved that said 1,500 acres shall be firm and valid, and shall have the same effect, 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 as before mentioned and reserved with its appurtenances.”
Whatever diversity of opinion may exist as to the law as
This proposition indeed flows inexorably from a principle which may be said to be axiomatic that in actions of ejectment the “burden is upon the plaintiff to show his title to the identical land claimed by the defendant.” Maxwell Land Grant Co. v. Dawson, supra.
If, therefore, the plaintiff could have been relieved of the burden imposed in the reservation made in the grant from the Commonwealth to Bobert Morris, under whom he claims, the exceptions in the deeds of land alienated by Phineas Thurston would have been fatal to his pretensions upon the case ás made by bim in the Circuit Court.
But it is said in the petition that the court did not consider the evidence of James A. Walker. His testimony is to the effect that he was acquainted with the Morris tract of land, and that he knows that large parts of said tract on the south side of the mountain in the county of Pulaski had been in the actual
Had tMs case been tried before a jury,' and had instructions been offered as was done in the case of Reusens v. Lawson upon the subject of adverse possession, tMs evidence would, perhaps, have been sufficient to render it proper for the court to give an instruction upon the law of adverse possession; but surely no one will contend that the evidence of James A. Walker was in itself sufficient to justify the court in finding that the plaintiff was entitled to recover upon it. TMs case was submitted to the Circuit Court without the intervention of a jury, and, in reviewing the record, we are controlled by section 3185 of the code, wMch is as follows: “The appellate court shall affirm the judgment, decree, or order, if there be no error therein, and reverse the same, in whole or in part, if erroneous, and enter such judgment, decree, or order, as the court whose error is sought to be corrected ought to have entered.”
We are of opinion that there is error in the judgment of the Circuit Court, and we must enter such judgment as that court should have entered. Without doubt, upon the evidence adduced before it, that court should have entered judgment for the plaintiff or for the defendant. There was no middle ground for it to occupy. We tMnk it erroneously decided for the plaintiff, and, so tMnking, we have no choice but to reverse it, and give judgment for the defendant. There is no alternative.
Reversed.