82 Va. 449 | Va. | 1886
delivered the opinion of the court.
The plaintiff is^ the holder of the legal title derived by an unbroken chain from Levi Hollingsworth, patentee of the Commonwealth, in the patent of September 17, 1795, for forty thousand and ninety-six acres. The action is against the defendant, who claims under a tax sale of a part of the Hollingsworth patent.
The deed of the tax collector is offered and admitted solely to show color of title in the grantor of the defendant, and is not asserted as evidence of title on account of want of regularity.
The defence is the statute of limitations and adversary possession.
The facts are that defendant holds possession of one hundred acres, included within the land sold for taxes, which in turn is included within the limits of the Hollingsworth .survey. The deed to the defendant was of August 23, 1860, from Siple. The tax collector sold to Givens, Givens to Fulton, Fulton to Siple, and Siple to the defendant, Hoover. Hoover took possession in 1860—the time of the year is not ascertained, but it was, however, before the growing crop of rye was cut on the land that year.
The suit was instituted the first Monday in September, 1882. During this time Hoover has held adverse possession of this land, which was under color of title, has been uninterrupted
The period thus excluded is seven years, eight months, and thirteen days. This period, subtracted from twenty-two years, leaves fourteen years, three months and seventeen days. It is suggested that the period from March 2,1866, to January 1, 1869, should not be excluded, but should be computed in a case in which the statute of limitations comes in question in an action of ejectment, because the said act, by the ninth section thereof (amending and re-enacting the sixth section of the act of January 23, 1865) provides that “nothing herein contained shall be so construed as to interfere with or abridge the law now in force in relation to actions of ejectment and unlawful
But it is proved in the case that when Hoover took possession, he found the land occupied by a tenant; the land cleared and cultivated, and a house built and an inclosure; and this tenant had been on the land three years; and there is much dispute in the case whether this tenant, whose name was Smith, was the tenant of, or claimed under, Siple. We will refer to this point again.
It is proved that Siple did have a tenant on this land for a five or ten year lease from 1850. This tenant, whose name was Killingsworth, left the premises in 1856, and Smith succeeded him; whether as the tenant of Siple or a mere intruder, must depend upon very slight evidence, for it is not proved positively that Smith was the tenant of Siple, although Smith’s deposition has been taken and the statements of Siple proved in the case.
But Hoover proves that as the vendee of Siple, he claimed by authority of Siple and received of Smith the rent in the part of the crop seeded in 1859. If this does not prove that Smith was the tenant of Siple, it comes very near doing so, as he paid the rent, one-third of the crop, to Siple’s order. And it is also proved by the evidence in the case that when Hoover went on the land, inspecting before buying, he found Smith there at work, clearing, &c.; and that Smith showed him the line between Siple’s survey and the Hollingsworth survey.
In this case the jury was dispensed with, and the case was submitted for trial to the court. The evidence has been all certified, and in such a case the case is considered in this court upon the familiar principles which apply to a demurrer to evi
In such a case this court is to consider the demurrer as if the demurrant had admitted all that could reasonably be inferred by the jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily result therefrom. Clark v. R. & D. R. R. Co., 78 Va. 712; and cases cited; R. & D. R. R. Co. v. Moore, 78 Va. 95.
The court below having found for the defendant in error, upon this evidence, where this principle is applied, we cannot, in this case, reverse that judgment. If Smith was a tenant of Siple, then the land in question has been held in adversary possession, under a color or claim of title, by Siple, or those claiming under him, for more than fifteen years, excluding the period, as we are required to do, between April 17th, 1861, and January 1st, 1869. And the defence of Hoover is thus complete, and his title to the land beyond attack by the holder of the legal title.
The statutes of limitations are to be enforced by the courts like any other statute. It has been often said by this court that they are statutes of repose, and are dictated by a wise policy founded upon the presumption against him who has unreasonably delayed the assertion of his demand, and in favor of him who has long exercised the dominion of owner. Taylor v. Burnsides, 1 Gratt. 187; Flannagan v. Grimmet, 10 Gratt. 421; Smith v. Chapman, Id. 445; Anderson v. Harvey, Id. 386.
The judgment of the circuit court of Augusta county is affirmed.
Judgment affirmed.