69 W. Va. 181 | W. Va. | 1911
Lead Opinion
In an action of ejectment brought by A. Z. Litz and others, against James D. Lowry and James H. Gilmore, trustees, and Joseph Bolen, in the circuit court of Raleigh county, for the recovery of a small tract of land containing about 65 acres, the defendants demurred to the evidence of the plaintiffs, and the court, deeming the evidence sufficient to warrant a verdict, overruled the demurrer and rendered a judgment for the plaintiffs.
The case is peculiar in this, that both the plaintiffs and the defendants claim under the same title. Though the plaintiffs set up an additional claim under a different and strange title', their principal claim is under the same title -which defendants claim. The history of that title is as follows r About the year 1849, Christian Cline entered upon the land in controversy and had a survey thereof made with intent to obtain a patent for it. The patent ivas issued August 1, 1851. Before he obtained the patent Cline sold the land to Amos Walker and gave him a
The controling inquiry is whether the plaintiffs claim of title, by forfeiture, for non-entry of the land upon the land , books for taxation, and transfer of the forfeited title to them by operation of section.3 of Article XIII of the Constitution, is well founded. We have already said this land was never entered upon the land books under the title of Cline or any claimant-under that title Until 1875. If any forfeiture had occurred prior to 1863, section 4 of Article IX of the Constitution of 1863 released it, since it released “all lands forfeited for the failure of the owners to have the same entered on the land books of the proper county and charged with the taxes chargeable thereon since the year 1831, where the tract does not contain
The title thus forfeited was transferred to and vested in the plaintiffs and those under whom they claim, if they were such persons as are mentioned as eligible transferees in section 3 of Article XIII of the Constitution, and had complied with the conditions found in either of the three clauses, creating classes of transferees for the purposes of that section. 'Clearly they
This conclusion renders i't unnecessary either to inquire whether any title vested in them under the Welch patent upon which also they rely, or to determine whether the possession under the title bond, or under the deed from John H. Smith to William Smith and subsequent deeds was adverse to Christian Cline or his heirs, questions extensively discussed in the briefs. The forfeiture and transfer gives them rather an academic character in this case.
In our opinion, the judgment is plainly right and will be affirmed. ■ Affirmed.
Concurrence Opinion
(concurring):
I concur with Judge PoeeenbaegeR that the plaintiffs can recover on title derived from forfeiture. But the question squarely arises, are they entitled to recover on title derived by adversary possession under the statute of limitations? I am clear that they are. have always been a strong advocate of a liberal application of the statute of limitations in land matters. It has been about the only panacea for the ills which have afflicted for one hundred years all the country in "Virginia and West Virginia west of the Allegheny mountains springing from the many conflicting grants, sometimes three or four deep, on the same land. I am not satisfied with the position that a vendee in actual possession under an executory contract, after he has paid the purchase money and is entitled to a deed, still holds not adversely to his vendor. I assert that it ought to be the law, and is, that such possession is adverse to the vendor. It is said not to be so in Virginia and West Virginia] Hot so under the generality of expression in the decisions; but I do not find any actual decision pointedly so holding. True, Judge SnydeR, in stating the elements of adverse possession in Core v. Faupel, 24 W. Va. on page 244, did say so; but he was only speaking in a general way, and it was not the point of decision. As far back as Boone v. Chiles, 10 Pet. 177, it was held that such possession was not held in privity and for the benefit of the vendor. In Jackson v. Kamp, 1 Cow. 605, whilst it is held that a vendee under executory contract does not hold adversely to the vendor, yet it is said that when he has performed the conditions of his contract his possession is hostile. “After per-iormanee of a contract to purchase and an equitable title to a deed to the premises acquired, there is no good reason why the sendee’s possession may not become adverse to his vendor. (Briggs v. Prosser, 14 Wend. 277.) Indeed, an agreement for conveyance, the consideration being paid, has been held to be tantamount to a deed as a foundation for adverse possession. (La Frombois v. Jackson, 8 Cow, 589; Clapp v. Bromagham, 9 Id. 530.)” These and others are old cases cited in Tyler on Ejectments,-878, 879, 884. I find in 1 Cye. 1047, this: “Wjhile the law seems to be otherwise in some States, the decided weight of authority is to the effect that a vendee of land in possession
Another theory touching the statute of limitations. I incline to the opinion, pretty decidedly incline, aside from possession under the title bond, that after Smith conveyed to Smith in 1873 the possession under that deed was adverse to the vendor and those claiming under him. It was a deed purporting to convey the legal title, and did not possession under it give