Abbildungen der Seite
PDF
EPUB

Statement of the case.

April 1st, 1831, who shall bave discharged all taxes duly assessed and charged against her, him, or them upon such lands, and all taxes that ought to have been assessed and charged thereon, from the time when he, she, or they acquired his, her, or their title thereto, whether legal or equitable."

Under this act, the land conveyed by Mr. Morris became forfeited.

In 1844 the legislature passed " An act for the relief of James Dundas and Benjamin Kugler," who had apparently become large shareholders of the North American Land Company, and who by sundry conveyances were then vested with whatever estate Nixon had been vested with by the deed of 1795, of Mr. Morris to Messrs. Willing, Nixon, and Barclay. By this act of 1844, Dundas and Kugler were authorized to redeem the lands forfeited under the alreadyquoted act of 1835; on which redemption by them the title vested by the forfeiture was released by the terms of the act to them for the benefit of the land company.

The act contained, however, in its second section, this proviso:

"Provided, however, that nothing herein contained shall be construed to deprive any persons having a legal or equitable title to these lands, by virtue of a subsequent grant from the Commonwealth, or otherwise, of his, her, or their right, title, or interest, but the rights of such claimants shall remain the same as if this act had never been passed."

Dundas and Kugler having, in May, 1845, redeemed the land, now put in evidence the certificate of the Auditor of Public Accounts of Virginia, to show that the taxes had been paid in pursuance of the act of 1844, and in 1845 the heirs of Barclay, who had survived Nixon, conveyed all his estate in the lands to Dundas and Kugler, as trustees of the North American Land Company. These two conveyed to Morrill, the plaintiff.

So far as to the plaintiff's title; as to which it will be observed that if any title passed to Mr. Willing by the deed of Mr. Morris to him, Nixon, and Barclay, and had not passed

Statement of the case.

from him by his disclaimer of 1806, then his estate, whatever it was, had not been conveyed to any one.

Now as to the defendant's title. Surveys having been made in different parts of the State, subsequent to the treaty of 1783, which included within their exterior bounda ries smaller tracts of prior claimants, and these being reserved to such claimants in the certificates granted by the surveyors, doubts arose as to the authority of the governor to grant patents in such cases. The legislature of Virginia accordingly passed, June 2d, 1788,* an act to authorize the governor to issue them. This act made a recital and enactment thus:

"Whereas sundry surveys have been made in different parts of the Commonwealth, which include in the general courses thereof, sundry smaller tracts of prior claimants, and which, in the certificates granted by the surveyors of the respective counties, are reserved to such claimants; and the governor or chief magistrate is not authorized by law to issue grants upon such certificates of surveys."

And it enacted:

SECTION 1. "That it shall and may be lawful for the governor to issue grants with reservation of claims to lands included within such surveys, anything in any law to the contrary notwithstanding."

With this statute in force, one Samuel M. Hopkins obtained a survey and patent from the State of Virginia, dated July 1st, 1796.

The survey was for 200,000 acres, and gave boundaries including a much larger area, closing with this statement, to wit:

"An allowance of 227,460 acres is made in the calculation of area of this plat for prior claims included within boundary thereof."

The patent followed the boundaries of the survey in its grant of the 200,000 acres, and concluded as follows:

* Second Revised Code of Virginia, p. 434, ch. 58.

Statement of the case.

"But it is always to be understood that the survey upon which this grant is founded includes 227,460 acres, exclusive of the above quantity of 200,000 acres, all of which having a preference by law to the warrants and rights upon which this grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants; and this grant shall be no bar in either law or equity to the confirmation of the title or titles to the same as before mentioned and reserved, with its appurtenances; to have and to hold the said tract or parcel of land, with its appurtenances, to the said Samuel M. Hopkins (except as before excepted) and his heirs forever."

This title of Hopkins became afterwards vested in one Watson.

Evidence was given tending to show that the patent to Hopkins embraced within its exterior boundaries the entire tract claimed by the plaintiffs, and that the defendants and those under whom they claimed had paid the taxes and assessments thereon, from the month of September, 1834, to the year 1840.

In addition to this paper-title the defendants set up also one founded on adverse possession. They had taken actual bonâ fule possession of the land in 1827, and had kept possession up to November 1st, 1836, when the premises in controversy were forfeited to the State, and they continued to occupy them throughout the term that the title was vested by the forfeiture in the State, and so also after May, 1845 (when by the redemption the tract was revested in its original owners), to the time when the suit was instituted, April 15th, 1857. Such possession before the forfeiture was, however, it will be observed, not for the term of fourteen years, the time then required by law in Virginia to bar a recovery, nor did such possession subsequent to the date of the revestiture, and before the bringing of this suit continue long enough to bar a recovery. The term before the forfeiture and the term after the revestiture tacked together constituted, however, an adverse possession of fourteen years, and would maintain the defence.

The defendants below-who had objected to the reception

Statement of the case.

in evidence of what was called the disclaimer of Mr. Willing (the paper printed supra, pp. 121-2), and had excepted to its admission-maintained:

I. As related to the construction of the patent to Hopkins.

1. That by its terms it covered all lands lying within its exterior boundaries, except such as came within the reservation contained therein; and that the burden was on the plaintiff to show himself within the reservation, which he had not done.

2. That only lands held by inchoate equitable title, not carried into grant when Hopkins's entry and survey were made, come within the reservation.

3. That lands lying within the exterior boundaries of the Hopkins grant, which had been patented prior to Hopkins's entry, survey, and grant, would, upon becoming forfeited to the State of Virginia, by virtue of the act of 27th February, 1835, inure to and vest in those holding under the Hopkins patent, provided such owner had complied with the other conditious mentioned in said act.

II. As related to their second ground of defence, namely, adverse possession, the defendants contended:

1. That the continuity of adverse possession as against the prior owners was not broken by the forfeiture and vesting in the State, November 1st, 1836, and continuance till redeemed by Dundas and Kugler in 1845.

2. That if it was broken, it was restored upon the principle of remitter or relation upon the redemption by Dundas and Kugler. And if neither

3. That it was competent for the defendants to tack the adverse possession prior to the forfeiture to that subsequent to the redemption, in order to make out the fourteen years. required by the statute to bar the action.

The defendants accordingly asked the court to charge:

"First. That the reservation in the patent to Hopkins, was of lands the titles to which were inchoate, and not of lands which had beer. granted by patent previous to the date of Hopkins's survey and entry.

"Second. That the patent covered all lands lying within the

Statement of the case.

exterior boundary of the survey, for which patents had issued previous to Hopkins's entry, survey, and patent, and became a junior grant to that issued to Gallatin.

"Third. That if Watson was the owner of the land described in the patent to Hopkins at the time the land in controversy became forfeited to the Commonwealth; and if he was, on the 27th of February, 1835, and up to the time of the forfeiture, in the actual bona fide possession, by himself or tenant, of the land in controversy, or any part thereof, under the patent to Hopkins; and if he, Watson, had, at the date of the forfeiture, discharged all taxes upon the land, then that the Gallatin title inured to and vested in Watson, and that the plaintiffs could not recover.

"Fourth. That if the jury are satisfied, from the evidence, that adversary possession commenced before 1st of November, 1836, and the same possession continued during the time of the forfeiture, as well as from the Ɛth of May, 1845 (the time of redemption), up to the time of the institution of this suit, and by adding the time of adversary possession before forfeiture to the adversary possession after redemption, makes a period of fourteen years, then they must find for the defendants, or such of the defendants as make out the fourteen years aforesaid.

"Fifth. That the act of 1844, which authorized Dundas and Kugler to redeem the lands therein specified, did not so operate as to relieve them from the effect of the statute of limitations, which had commenced running for the defendants before the forfeiture, for the time the land in controversy was so forfeited, if the jury believe the defendants continued their possession without interruption during the forfeiture and up to the time of redemption, and that the defendants continued the possession to the time of the institution of this suit."

The court refused these instructions, and charged that:

"The grant to Hopkins, embracing within its exterior boundaries 227,460 acres of land, which is reserved and excepted to prior claimants, does not operate to divest them of their title, unless they fail to show themselves entitled to the land under said reservation; nor does the grant pass any legal title to the grantee of the lands so reserved and excepted by it, where the same have been previously appropriated and granted by the Commonwealth, inasmuch as it appears that the patentee gets

« ZurückWeiter »