77 W. Va. 37 | W. Va. | 1915
While the well known suit of the State against Henry C. King, for sale of the lands embraced in the Robert Morris, grants, as having been forfeited for non-entry for taxation, was pending, one Bruce McDonald on the 10th day of April, 1906. executed a deed to J. D. Lowry, trustee, for a tract of land, containing about 200 acres lying within one of the Morris grants, some portions of which had previously bqen cleared and occupied by “squatters,” none of whom claimed ownership of it. McDonald had never occupied it and held no paper title thereto, either good or bad. Its location within
The beneficiaries of the trust referred to in the deed are not disclosed by its terms, but the petitioner admits, in his testimony, that they are Bruce McDonald, Bilton McDonald and Millard McDonald. Manifestly, the purpose of the deed was a technical compliance with the letter of the transfer provisions of sec.' 3 of Art. 13 of the Constitution and sec. 40, ch. 3L, Code, ser.' sec. 1099. The argument of' counsel in support of the decree proceeds upon the theory of the sufficiency of a mere literal compliance with the terms of the constitutional and stautory provisions, which are alike in all respects. Each requires only actual and continuous possession, under color or claim of title, for specified periods,-and payment of taxes for any period of five years during such possession, or after a certain date. The provisions ■ do not define these terms “color or claim of title,” and, on this omission and the implied invitation of strangers to take possession of forfeited land and pay the taxes thereon, is based the theory of right under which the deed was executed, possession taken, taxes paid and the petition filed.
The well known distinction between possession under claim of title and possession under color of title need not be noticed. Only the 'latter is involved here and the only inquiry is whether the petitioner, under the true interpretation of these terms, has been in possession under color of title. Though the
In the law of adverse possession, the requirement of good faith does not relate to the act of entry or occupation. Occupancy may take place with express purpose and intent to sieze and hold the land against persons known to have superior and even unquestionable title. This may be done by one whose paper title is utterly worthless, because it is a junior patent or has incurable infirmities and defects. One of the requirements of such occupation is that it be hostile to all other claimants and in violation of such rights as they have. No other sort of an entry or occupancy is within the protection of the law of adverse possession. If a man believing himself to have some right or title in land, enters upon it as the tenant of another claimant, his holding is not adverse, but subordinate, to the light of such other person. He must claim the land as his own. He may purchase a defective or void title, with intent and purpose to occupy and hold the land under it, and thus ultimately acquire perfect title. The question presented here is, however, an entirely different one, namely, whether, for the purpose of seizing and occupying land ydiich does not belong to him, he may fraudulently start a paper title, as by the forgery of a paper or corrupt procurement of the execution of one by a person who he knows has no title to the land. Possession obtained by fraud is protected by the statute, in many instances, but will the courts permit a fiction of their own creation, the doctrine of color, to be used as an instrument" for the accomplishment of actual fraud?
Consistently with this general view of the statute, the courts, with few exceptions, have declared that' possession under color, to be adverse, must not be fraudulent. ‘ ‘ It must be bona fide but it is not necessary that the claimant should believe his claim to be a good or valid one.' He may know that some other person has the better right. It is not necessary that he should think his claim good in its inception, for it generally begins in and presupposes wrong; but it must not be fraudulent, nor, except in certain eases well settled, involve any breach of trust.” Swann v. Young, 36 "W. Va. 57. An Illinois statute declaring every person in the actual possession of land or tenements under claim or color of title, made in good faith, continuing in such possession for seven consecutive years and paying all taxes assessed on the land, should be held and adjudged to be the legal owners thereof, was interpreted as requiring good faith in the procurement of color of title. And for its definition of the term “color of title,” the court went to the common law and its former decisions under the ordinary statute of limitations. In the course of its opinion, the court said: “It affords no evidence, to my mind, that the legislature intended to change the meaning of color of title, as settled under the limitation of twenty years, to a higher grade, or prima facie title, but rather to extend to the shorter period over another larger class of the cases left alone to the protection of the longer period. I am not able, therefore, to draw from the language of the act, nor from the circumstances under which it was passed, any inference or conclusion that “claim or color of title” were used, or intended to be used, in any other sense than that known, used and settled under the existing acts of
That fraud on the part of the grantee, in the procurement of color of title, denies him the protection of the law of adverse possession, under color, was affirmed in Gregg v. Sayre, 8 Pet. (U. S.), 244, in which a judgment was reversed on account of a charge in which the court told the jury knowledge of fraud on the part of the grantee was immaterial. In Wright v. Mattison, 16 How. (U. S.), 50, the federal Supreme Court approved the doctrine of the Illinois court, respecting the definition of color of title, to which reference has been made. “When, however, the deed relied upon, as giving color of title, has been obtained by fraud or forgery; or when the grantor had no title, and this is known to the grantee who sets up and relies upon his adverse possession under it; in these and like cases, the deed will avail the party nothing.” Saxton v. Hunt, 20 N. J. L. 487. “We are satisfied that the execution of this deed and the bill of sale were not good faith transactions, and that the deed was made and received with the hope of thereby, in some way, fabricating a claim of title.” Laraway v. Zenor, 100 Ia. 181, 187. Sufficiency of the deed, as color, was denied in the decision of the case. “A deed fraudulently obtained is not available as the foundation of an adverse possession, so as to avoid a subsequent conveyance; nor is a deed available for such purpose executed by a person assuming to act as the attorney of the grantor, but without authority, when such want of authority is known to the grantee.” Livingston v. Peru Iron Co., 9 Wend. (N. Y.), 511. “There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law purporting to transfer to him the title or give to him the right of possession. And there can be no such thing as good faith in an adverse holding where the party knows that he has no
Here, as is so often the case, an unfortunate conflict of authority is found. The courts of North Carolina and Tennessee hold the contrary, saying the statute is one of repose and bars in all cases not specifically excepted from the operation thereof. Reddick v. Leggat, 3 Murph. (N. C.) 539; State v. Seals, 165 N. C. 409; Oliver v. Pullam, 24 Fed. Rep. 127; Blantire v. Whitaker, 30 Tenn. 313; Porter’s Lessee v. Cocke, 8 M. & Y. (Tenn.), 28. In two of these cases, conflicting grants from the state were involved, Reddick v. Leggat and Oliver v. Pullan. The fraud charged pertained to the procurement of state grants, and made them merely voidable, by proceedings for the purpose which had been neglected, and
Wood on Limitations, at sec. 259, relying principally upon Reddick v. Leggat, 3 Murp. 529, says the weight of authority sustains the rule that any instrument which purports to convey lands, and describes them definitely, and upon its face appears to be a valid deed for the conveyance of the premises, is sufficient color of title, regardless of the question of bona fides or mala fides on the part of the grantee under it, and cites, as further authority for the proposition, Finlay v. Cook, 54 Barb. 9. An' examination of that case discloses absolute silence as to this proposition or any suggestion thereof. A note to sec. 258 of that work says the decisions in Livingston v. Peru Iron Co., 9 Wend., 511 and Jackson v. Andrews, 7 Wend. (N. Y.) 152, arose under the statute concerning champerty and maintenance. There is no reference to the statute in the former and the latter involved a pendenate lite purchase, which the court declared to be champertous and void. In taking this position, the author above referred to, seems to have been influenced largely by views expressed in Tyler on Ejectment, 865, 866. That author approving and commending the decision in Reddick v. Leggal, invokes in support thereof, the general principles of the statute of limitations as one of repose, and repeats them from Stowell v. Zouch, Plowden, 358, 371, Maddox v. Bond, 1 Irish Term Rep. 332, 340 and Chelmondeley v. Clinton, 2 Jac. & Walk. 139, 140
The proposition is fallacious in this, that it assumes the doctrine of color of title to be a part of the statute of limitations. It is most emphatically and distinctly not. It is no more than a judicial fiction devised for the purpose of working out just results under the statute. In reality, it is judicial addition to the terms thereof, made in obedience to its .spirit. Saying nothing about color of title, the statute merely denies a remedy for a right of entry, after the lapse of a stated period of time, and thus secures the occupant his possession. But for the doctrine of color of title, that possession would be limited to his actual enclosure, improvement or cultivation. In order to effectuate the legislative intention, the courts have said that, if the occupant entered or claimed title under an instrument which has the semblance of paper title, this possession is deemed to extend to the boundaries described in it, nothwithstanding the invalidity of the paper itself, and thus give him vastly more than his enclosure. The purpose of this addition was to make 'it work out just results, not injustice, nor to open the door for the perpetration of frauds. Neither judicial invention nor legislative declaration, puts the courts under obligation to permit its use for unworthy purposes. To deny the benefit of this doctrine, to an occupant who has entered under a paper title for which he paid nothing and which he obtained for the specific purpose of defeating the right of another person, works no hardship upon him. He has parted with nothing. To the extent of his improvement or enclosure, the statute, without the aid of the doctrine of color, protects him, and that is as far as his claim has any merit.
No doubt, after a paper title has been originated and put into existence and has operated as an inducement to invest in it and take possession under it, an occupant claiming thereunder would be entitled to protection. However fraudulent
Deeming it entirely just, accordant with legal principles and consistent with the definition, office and function of color of title, to hold that a person in possession of land cannot rely upon paper title, not good in law, for which he paid nothing and which he has himself fabricated, or procured to be made, for the purpose of obtaining land he neither occupies nor owns, and with no other intention than to enlarge the boundaries of land, he is entitled under the terms of the statute of limitations, to hold against the rightful owner, we proceed to Inquire whether color of title, as thus defined, is such color as is contemplated by the constitutional and statutory provisions under which the petitioner claims.
From what has been said concerning the origin and riature of the doctrine of color of title, it is manifest that the phrase by which it is designated is technical and peculiar to the common law. Hence, its definition is to be found there and not elsewhere. .That is the source from which it was imported into the constitution and the statute. To ascertain what it means, we must resort to its origin and repository. Ex parte Bornee, 85 S. E. 529; Daniels v. Simms, 49 W. Va. 554; N. & W. Railway Co. v. Prindle, 82 Va. 122, 130; Abbotsford v. Johnson, 98 U. S. 440; 36 Cyc. 1118, 1145. This rule is not operative, however, if contrary intention is disclosed by the context'. The question is purely one of intention. Nothing in the terms of the constitutional provision or the statute indicates intention that the phrase, “color of title,” shall have a meaning different from that which it has at common law. It is unattended by any limiting or qualifying words, and nothing in the general purpose or the spirit of the provisions warrants deviation from its technical meaning. The implied invitation to settle upon and improve forfeited land does'mot argue any intention to give it to persons other than occupants
Agreeably to these principles and conclusions, we reverse the decree, reinstate the petition of King and remand the cause, for ascertainment, under the principles here stated, of the portion of the 200 acre tract Lowry is entitled to have dismissed, dismissal of the same and redemption of the residue thereof by King, as against the state and Lowry and his cestuis que trustent.
Reversed and remanded.