Bryan et al. v. Willard et al.

• Decision Date: 02 December 1882
• Citation: 21 W.Va. 65
• Court: West Virginia Supreme Court
• Parties: Bryan et al. v. Willard et al.

21 W.Va. 65

Bryan et al.

v.Willard et al.

Supreme Court of Appeals of West Virginia.

Submitted August 15, 1882

Decided December 2, 1882.

1. Under the act of June 1788, authorizing the Governor to issue grants with reservations of prior claims included within the boundaries thereof, the reservations in such grants, under said act, exclude from their operation all lands held by prior claimants at the dates of the surveys on which such grants are founded, within the exterior boundaries of the grants, whether the title was only inchoate or had been perfected by grants, (p. 72.)

2. Under an inclusive grant, issued by virtue of said act, containing a general reservation of a specified quantity of land for prior claimants, the grantee acquires no title whatever to the land so reserved. And in such case, if the title of any such prior claimant becomes forfeited for non-entry or for the non-payment of taxes, the title thus forfeited will not vest in such inclusive grantee under the act of March 22, 1842. (p. 74.)

Writ of error to a, judgment of the circuit court of the county of Kanawha rendered on the 8th day of July, 1881, in an action of ejectment in said court then pending, wherein Joseph Bryan and others were plaintiffs, and John Willard and others were defendants, allowed upon the petition of said plaintiffs.

Hon. F. A. Guthrie, judge of the seventh judicial circuit, rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the Court,

William II. Hogeman for plaintiffs in error.

William A. Qaarrier for defendants in error.

1. A junior inclusive grant confers no title to the grantee to the land of prior claimants inside the boundaries of the junior grant, a. Whether the title ot the claimant be evidenced by entry, survey or grant, b. Or whether the exclusion and reservation contained be specific, (by names and quantities,) or general, (without names and by aggregating quantity.)

2. The reservation and exclusion does not depend upon the act or intent of the surveyor, junior grantee, register or governor, or the words of the junior grant, hut results from the act of 2d dune, 1788.

3. If the title of the senior claimant be forfeited for nonentry or for non-payment, the junior inclusive grant can not take the forfeited title.

4. A persbn claiming a forfeited title under the act of 22d March, 1842, must show, and the burden is upon him to show, that he is in a condition to take the forfeited title.

5. Whenever it appears that there is a junior inclusive survey, with a general reservation for prior claims, and it appears that the claim is prior and wholly or in part inside of the junior grant, this is sufficient, no other proof is required. No title good or bad is granted to the junior grantee to the land included in the prior claim.

5 Pet. 81; 14 Wall. 120; 3 W. Va. 212; 10 W. Va 387; 4 Rand., 365; 6 Munf., 49; 30 Graft. 582.

Thomas B. Swann and Smith $ Knight for defendants in error cite the same authorities as above.

Snyder, Judge, announced the opinion of the Court:

This was an action of ejectment brought in the circuit court of Kanawha county, on November 5, 1877, to recover five thousand acres of land situate in said county. The defendants disclaimed title to all of said land except about one thousand one hundred acres. An issue was joined on the plea of not guilty and tried by a jury which resulted in a verdict for the defendants. The court, on July 2, 1881, gave judgment for defendants on said verdict. On the trial the plaintiffs and defendants each requested an instruction to the jury. The court refused the instruction of the plaintiffs and gave that of the defendants to the jury, and the plaintiffs excepted. The plaintiffs' bill of exceptions shows the case to be, substantially, as follows:

On the 24th day of August, 1794, Albert Gallatin and Savary de Valcoulon, according to an entry previously made by them, caused a survey to be made of two thousand acres of land situate on the southwest side of the Kanawha river in Kanawha county, and a grant issued to them for said land, so entered and surveyed, on the 22d day of July, 1795. This tract of land, having become forfeited for the failure of the owners to have the same entered on the books of the commissioner of the revenue and pay the taxes thereon, was sold by the commissioner of delinquent and forfeited lands, by proceedings had under the acts of March 30, 1837, and March 15, 1838, providing for the sale of delinquent and forfeited lands under orders and decrees of courts. The said sale was confirmed and deeds executed to the purchasers. By a series of conveyances the title to the land thus sold, to the extent of the one thousand one hundred acres now in controversy, became vested in the defendants in this action and this constitutes their paper title to said land.

On the 24th day of October, 1794, and January 25, 1795, William Wilson made entries for eighty-five thousand six hundred acres of land on the southwest side of Kanawha river in said county, and on April 14, 1795, caused a survey thereof to be made and on the 1st day of January, 1796, a grant issued to Benjamin Martin assignee of said Wilson for said land. This is what is known as an inclusive survey and the grant contains this reservation:" But it is always to be understood that the survey upon which this grant was founded includes six thousand seven hundred and eighty-six acres of prior claims (exclusive of the above quantity of eighty-five thousand six hundred acres) 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 either in law or equity to the confirmation of the title or titles to the same, as before mentioned and reserved, with its appurtenances," &c.

By sundry conveyances all the title acquired by Martin under said grant and whatever title, if any, enured to said title by the forfeiture of the Gallatin title to the aforesaid two thousand acres, in and to the said eighty-five thousand six hundred acres of land, to the extent of the five thousand acres in the plaintiffs' declaration mentioned, became vested in the plaintiffs before, and was owned by them at the time this action was instituted, and this constitutes the plaintiffs' title to said land.

The location and identity of the lands embraced in the respective grants aforesaid are agreed in the record, and the exterior boundaries of each covers and includes the land in controversy. The Wilson survey calls for the upper back corner of the Gallatin survey and two of the exterior lines of the Wilson run inside ot the boundary of the Gallatin and thus is formed an interlock of about one thousand one hundred acres which is the land in controversy in this action in this Court, There was evidence tending to prove that the defendants and those under whom they claim had been in the actual adversary possession of the said one thousand one hundred acres for a period of time beyond that prescribed as a bar by the statute of limitations. But there was no evidence that the plaintiffs had ever been in the actual possession of any part of the land in their declaration mentioned. It was shown that the plaintiffs had paid the taxes on the lands in said Wilson survey up to and including the year 1842, and that the title to the Gallatin survey had become forfeited for non-entry and the non-payment of taxes thereon prior to the said year 1842. Thereupon the plaintiffs moved the court to instruct the jury as follows:

"The court instructs the jury that inasmuch as it is a conceded fact in this action that the Gallatin survey of two thousand acres, which has been given in evidence by the defendants, was at the date of the passage of the act of March 22, 1842, concerning delinquent and forfeited lands, forfeited to the commonwealth for the non-payment of taxes due thereon, or for the failure of the owners to cause the same to be entered on the books of the commissioner of the proper counties and have the same charged with taxes according to law, that the said survey then was, by reason of said forfeiture, vested in the commonwealth; and if the jury find from the evidence that the William Wilson survey of eightyfive thousand six hundred acres and' the grant thereunder given in evidence by the plaintiffs, and under which they claim, included any part of the land embraced within the boundary of the said forfeited survey, and that the persons having just title or claim to said Wilson survey at the passage of the act aforesaid shall have paid all taxes duly assessed and charged against them, and all taxes that ought to have been assessed or charged thereon from the time they acquired title thereto, then, by virtue of the said act of March 22, 1842, that portion of the forfeited survey embraced within the boundary of the Wilson survey which had become and was vested in the commonwealth, became absolutely transferred to and vested in the said persons having such title and claim to said Wilson survey, except so far as any persons made bona fide claim to any part of said land by title, legal or equitable, derived from the commonwealth, and on which the taxes had been fully paid up according to law."

To the giving of which instruction the defendants objected, and in lieu thereof the defendants asked the court to instruct the jury as follows, to-wit:

"If the jury find from the evidence that the grant to Gallatin and Savary under which the defendants claim is older than the grant to Martin under which the plaintiffs claim, and that the Gallatin and Savary grant is founded on an older entry and survey than the entry and survey upon which the Martin grant is founded, and that any portion of the land in controversy is included within the calls of each of said grants, then the jury should find under the evidence in this cause that the land embraced in the said...