81 Va. 668 | Va. | 1885
delivered the opinion of the court.
The plaintiff in error, claiming under a grant from the Commonwealth of Virginia to Levi Hollingsworth, dated Septem
The defendants disclaimed title to any of the lands in the plaintiff’s declaration mentioned, except the eighteen and three-quarter acres embracing the Union Springs, granted to Abram Click by the Commonwealth of Virginia by patent dated December 1st, 1835, as to which tract they pleaded not guilty.
The cases coming on to be heard together, the matters of law and fact were, by consent, submitted to the court, and a jury being waived and the evidence heard, judgment was rendered for the defendants. From this judgment the plaintiff applied to this court for a writ of error, which was awarded.
The evidence havipg been certified to this court, the case is heard here upon the well understood principles which govern a demurrer to evidence. The defendants having entered under a previous patent, their claim is dependent upon the length and character of their possession. The period of time necessary to ripen their possession under claim of title into a complete title is determined by the limitation provided by law, when the plaintiff’s right of action first accrued. Click’s patent was obtained December 1st, 1835, and conveyed by him by deed to the defendants June 15th, 1838, when the possession of the defendants began to be evidenced by acts of ownership, such as clearing and building, &c.
The act of February 5th, 1831, in the supplement to the Revised Code of 1819, page 201, was the law which defined the limitation to the owner’s right of action to recover the possession, which, under that act, was twenty-five years. Section
This possession, however, to bar the plaintiff’s right of entry must continue, not only through the' period of statutory limitation, but it must be of the quality and character which the law requires. It must be uninterrupted, honest, and adverse. Such possession for the period prescribed by the statute, not only gives a right of possession which cannot be divested by entry, but also gives a right of entry and of action, if the party is plaintiff, which will enable him to recover, even against the strongest proof of a title, which, independently of such continued adversary possession, would be a better title. This possession must be adverse, grounded upon an ouster or dispossession of the real owner; a possession under claim of title, is in reference to conflicting claims and the statutory prescriptive bar; it must consist of an actual, exclusive, continued, visible, notorious, and hostile possession under a colorable claim of title.
Such is the possession necessary to avail against the constructive seisin of the prior patentee. The mere entry by him or his agent is not enough. It is not necessary that the land should be enclosed or built upon, but the entry must be made under a claim of title, with the intention of taking possession, and being accompanied with such visible acts of ownership as from their nature indicate a notorious claim of property in the land. The character of the acts necessary to give to the party the seisin required, varies with the situation of the land and the condition of the country.
The land in controversy in this case appears, from the evidence, to be a piece of mountainous land, containing a spring of value. The possession which has been taken of it was the
The defendants claim that the period of limitation had long since run, and their title had been perfected by reason of their adverse possession before the suit of the plaintiff was instituted. The plaintiff seeks to excuse her delay in bringing her suit upon the ground that her ancestor conveyed this property to trustees in 1824, to pay debts, and that the debts were only fully paid and the land released by the trustees in 1880, and that, until the release to her, she could not maintain ejectment. Citing Hopkins v. Ward, in this court, reported in 6 Munf. 38; Syrus v. Alleson, 2 Rob. R. 210; Lincoln v. French, 15 Otto, 614; Pratt v. Pratt, 6 Otto, in the Supreme Court of the United States, and Coulter v. Phillips, 20 Pa. St. R. 155, and other cases.
But the question arising in this case is not whether she could sue, or the trustees could sue, to recover the land held under the trust deed.. In this case, neither the grantor in the deed, the ultimate cestuis que trust, nor the trustee did sue, until the release by the trustee; and if, as claimed by the plaintiff,.she could not sue until the release to her, or until the debt was satisfied, it cannot be claimed that the person clothed with the legal title could not maintain ejectment under our, statute. Hopkins v. Stephens, 2 Rand. 422; Jones v. Comer, 5 Leigh, 381; Poage v. Bell, 8 Leigh, 604.
In the case of conflicting grants from the Commonwealth to different persons, where the older patentee has had no actual possession, and the later patentee enters upon the land and takes and holds possession of any part thereof, claiming title to all within the bounds of his grant, it is an adversary possession of the whole, to the extent of the limits of the later patent, and to that extent it is an ouster of the seisin or possession of the older patentee, as to these lands.
An essential requisite to constitute an adverse possession that will be efficacious under the statute, is continuity, and whether a possession is to be regarded as continuous or not, when taken by different persons, depends upon the circumstances. If one merely enters and commits a trespass, andthen goes off, and another comes after him and commits a trespass, it is not to be denied that there is no privity between these persons, nor can the possession be said to be continued from one to the other.
Whenever one quits the possession, the seisin of the true owner is restored, and an. entry afterwards by another wrongfully constitutes a new disseisin. The continuity of possession having been broken before the expiration of the period of time limited by the statute of limitations, an entry within the 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 is required. The tenant cannot sustain his defence of continued adversary possession if, within the period of limitation, the premises have been abandoned by him or those under whom he claims. Min. Inst. 2d Vol. 508; Angel on Lim., sec. 413; Taylor v. Burnsides, 1 Gratt. 208-210; Overton v. Davisson, 1 Gratt. 223; Koiner v. Rankin, 11 Gratt. 427; Cline v. Catron, 22 Gratt. 378; Davidson v. Watkins, 2 Rob. Rep. 269; 1 Lom. Dig. 797; 2 Smith’s Leading Cases, 596; Pederick v. Searle, 2 Serg. & Rawl. 240; Andrews v. Mulford, 1 Hay (N. C.), 320; Park v. Cockran, 1 Hay, 180; Hood v. Hood, 2 Grant (Penn.), 229; Wickliffe v. Enson, 9 B. Mon. (Ky.) 253; Cornelius v. Giberson, 1 Dutcher (N. J.) 1; Ward v. Herrin, 4 Jones’ Law (N. C.), 23; Bryne v. Lowry, 19 Ga. 27.
It is contended in this case by the defendants in error that if their title had not been perfected by the expiration of the period of time prescribed by the statute of limitations, that the break in the continuity of possession, which occurred during the period of the war, and for the years immediately following its expiration, was cured by the act to preserve civil rights and remedies, passed March 2, 1866, to be found in the Code- of 1873, chapter one hundred and forty-six, sections six and seven;
But, as we have seen, the plaintiff in error was allowed twenty-five years to re-enter under the law which affected her rights, however complete the adversary possession of the defendant in error had been for any shorter time, and that period, thus prescribed by the statute of limitations, not having run, the said defendants in error had acquired no rights under their claim and possession, and the statute providing for the preservation of civil rights and remedies could have no application to their claim. The statute was not enacted to create a wrong, but to preserve a right. And until their wrongful entry upon the lands of the plaintiff in error had been ripened into a complete title, they had no claim which could avail them against the better title of the plaintiff. And this break in the-continuity of their possession is not aided by the provisions of' the statute in question.
An application of these principles to this case compels us to-hold that a possession which affects the land in question only for a few weeks in each year, which has not been continuous, for any one year, nor for any number of years, by any one person in continuous holding, which was abandoned altogether-for seven years together, although originally taken under-
Judgment reversed.