9 Gratt. 194 | Va. | 1852
The appellant entered a caveat in the Circuit court of Carroll against the issuing of a grant to the appellee. The caveat rests upon the ground of the better right in the cav.eator to the land-surveyed. Unless he can show such better right, the judgment in favor of the caveatee must be affirmed, though it might appear that as against a party showing a right his entry and survey were defective.
It appears from the facts found by the jury, that the land embraced by the entry and survey of the caveatee lies within the boundaries of a grant to Thomas Ruston and John D. Blanchard, dated the 11th December 1795. That, on the 5th September 1795, the said Thomas Ruston conveyed the whole tract to his son Thomas Ruston, Jr., and two daughters, Mary and Charlotte Ruston, which deed appears upon its face to have been merely voluntary. It contains no covenant of warranty, and it bears date and was acknowledged before the emanation of the grant. On the 12th of June 1839, the commissioner of delinquent and forfeited lands for Grayson county made a report to the judge in vacation, of lands forfeited to the Giterary fund for the nonpayment of taxes charged thereon, and for the failure to enter them on the books of the commissioner of the revenue for said county; which report being examined was affirmed, and ordered to be recorded ; and the commissioner was directed to proceed to sell the several tracts of land mentioned in the report. Amongst those tracts is one moiety of the tract granted to Ruston and Blanchard, re
But in this case it seems to me the caveator has utterly failed in connecting himself with the Ruston and Blanchard title. The commissioner to make sales under the delinquent land laws, under which these proceedings were had, has no interest in thé subject of sale. He acts like a commissioner to make sales under a decree of the Chancery court, and is clothed with a *mere naked authority. Having no, interest in the land conveyed, the deed of the commissioner could avail nothing where his authority to make it did not appear, unless there had been such a long acquiescence and possession under the deed as to justify a presumption in favor of the deed, as was the case in Robinett v. Preston, 4 Gratt. 141. In this case no such presumption can be raised. The caveator has rested his right upon the deed and the proceedings which led to it. In such a case, and as against a stranger setting up an adverse claim to the title asserted, the recitals in the deed are no evidence. Carver v. Jackson, 4 Peters’ R. 1, 83; Wiley v. Givens, 6 Gratt. 277. In the case of Masters v. Vaner, 5 Gratt. 168, a decree of the Chancery court and the marshal’s deed were offered in evidence. The decree did not describe the specific land directed to be conveyed ; but it was described with sufficient certainty in the deed. This court held that the recitals in the marshal’s deed were no evidence as against a‘ third person asserting an adverse claim, of the authority of the marshal to convey the specific tract; and that as the decree left it uncertain, it was necessary to produce the whole record, or so much thereof as would show that the land conveyed was the land embraced in the suit, before the deed could be used as evidence. In the case under consideration, the report of sales set out that Raper, Graham and Allison were the purchasers. By the 8th section of the act of March 30, 1837, it was the duty of the court to direct the commissioner to convey to the purchasers upon the payment of the purchase money; and the 9th section of the act of 15th March 1838 declares that the purchaser shall, on application to the commissioner, be entitled to his deed upon the payment of the purchase money. By each act the authority of
Judgment affirmed.