Levasser v. Washburn
| Decision Date | 29 August 1854 |
| Citation | 52 Va. 572 |
| Parties | LEVASSER v. WASHBURN. |
| Court | Virginia Supreme Court |
1. Time does not run against the commonwealth.
2. Though an adversary possession of land had commenced to run against the true owner, yet upon the forfeiture of the land to the commonwealth, under the delinquent land laws, the possession, until the land is sold by the commonwealth, is no longer adversary against her, or her grantee claiming under a conveyance from a commissioner of delinquent lands.
3. The forfeiture of land for the failure to enter it upon the commissioner's books and pay the taxes and damages due upon it, was effected by the statute, and required no judicial proceeding to complete it. The forfeiture was therefore, complete at the time fixed by the statute.
4. The act of March 18th, 1841, Sess. Acts, p. 31, relinquishing the commonwealth's right to forfeited lands to a junior patentee in possession, only applies to those whose patents bear date previous to the 1st of April 1841.
5. A patent for land which had been previously granted by the commonwealth, and had been forfeited under the delinquent land laws, passed nothing to the patentee; and a conveyance of the land forfeited by the commissioner of delinquent lands, passed the title vested in the commonwealth by the forfeiture.
6. The court may refuse to give an instruction because it is so obscurely expressed as to leave in doubt the meaning intended.
This was an ejectment in the Circuit court of Jackson county. The declaration contained one count on the demise of Honore Girond, another of the president and directors of the literary fund, a third of J. E. Norvell and John De Homergue a fourth of said Norvell and Eugene Levasser, and a fifth in the name of Eugene Levasser alone. The plaintiff, under the last mentioned count, claimed as derivative purchaser under a sale made by order of the Circuit court of Jackson county under the acts of assembly in relation to delinquent and forfeited lands. A grant had issued to one Honore Girond bearing date on the 22nd of March 1786, for ten thousand eight hundred and forty-three and three quarter acres; and the land thus granted having become forfeited to the commonweath by reason of the failure of the owners to cause the same to be entered upon the books of the commissioners of the revenue in the proper county, and to be charged with taxes and damages, and to pay the same according to law, the same was reported to the court, and on the 13th of September 1841, a decree was entered, directing the land to be sold by the commissioner. The sale took place on the 4th Monday in November 1841, and was confirmed by the court on the 15th of April 1842. A deed was executed to the purchaser in persuance of such confirmation, on the 25th of December 1843. The declaration in ejectment was filed on the 10th of April 1847 and on the same day the defendant appeared and pleaded the general issue. The defendant Thomas Washburn claimed under a patent to himself for one hundred acres of land bearing date the 1st day of April 1841, and under a written contract which he had made for the purchase of four hundred and eighty acres of land, embracing the premises in controversy, of one James Hector, in the spring of 1836. This contract was proven to have been lost, and evidence was given of its contents. He also proved that he went upon the land in the spring of 1836, claiming title to the same, and had continued in possession down to the institution of the suit. He also proved that one Smith had settled upon the land in 1833, had held it until he took possession in 1836, claiming under one Watson, who claimed under a grant founded on an inclusive survey, which issued to one Samuel M. Hopkins on the 1st of July 1796; but he gave no evidence of any connection between his claim and that of Smith.
The grant to Girond and the proceedings of the Circuit court of Jackson county in the matter of the forfeiture for nonentry and nonpayment of taxes, the deed from the commissioner to De Homergue, the purchaser, and a conveyance from him to Levasser, one of the lessors of the plaintiff, were given in evidence to the jury. A plat and report made in the cause under the order of the court, were also exhibited, and it appeared that the land claimed by the defendant lay within the boundaries of the tract claimed by the plaintiff.
The defendant gave in evidence the grant to Hopkins in 1796, and a conveyance from one Oliver Walcott to the said Watson, dated 22nd June 1808.
After the evidence had been closed on both sides, the plaintiff moved the court to exclude the defendants' grant from the jury; but the motion was overruled. He then asked the court to instruct the jury:
First. That the decree of the court of Jackson was conclusive as to the forfeiture of the land and the quantity forfeited; and that it was not competent for the defendant to contradict it by alleging that the land embraced by his grant for one hundred acres, was not forfeited.
Secondly. That if said one hundred acres had been before granted by the commonwealth to Girond, the grant to defendant passed nothing.
Thirdly. That the statute of limitations did not run against the state, and that it only commenced running against the plaintiff on the purchase at the commissioner's sale in the fall of 1841.
Fourthly. That the purchaser at said sale was entitled to the land purchased by him, and that when the sale was confirmed and the deed made, the latter related back to the sale, and that he was entitled to a deed at the time of the sale.
The court declined to give the instructions in the form and terms in which they were asked for; but instructed the jury, that the decree and proceedings in forfeiture adduced in evidence by the plaintiff, were conclusive to show that the title under the grant to Honore Girond had been regularly forfeited to the commonwealth, and that the rights and interests acquired by the commonwealth or the literary fund had been passed to the purchaser at the sale made by the commissioner under said decree; and that it was not competent to contradict such forfeiture: But that the commonwealth took nothing by the forfeiture aforesaid, other than the right, title and interests which existed in those in whose name and for whose defaults such forfeiture accrued, and as the same were at the time of the forfeiture; and she took the same in the plight and condition in which it stood at the time of the forfeiture.
The court further instructed the jury, that in as much as the patent for one hundred acres to the defendant, bore date on the 1st day of April 1841, that he could not be in a condition to take the benefit of the act of March 18th, 1841, which only applied to patents issued previous to the 1st day of April 1841, if even in other respects he had shown himself within the provisions of that statute, by the payment of taxes, & c.; that the purchaser at the sale aforesaid, became entitled to all the rights which had vested in the commonwealth or literary fund, by the forfeiture aforesaid, and that his deed from the commissioner, when made, related back to the time of the sale of the said land.
The court further instructed the jury, that if the statute of limitations had commenced to run by reason of the adversary possession of the defendant against the said Honore Girond, under whom the plaintiff claims, by the forfeiture, sale and conveyance aforesaid, prior to the said forfeiture, that then and in that event the statute would continue to run, notwithstanding said forfeiture; and that if such adversary possession of the land in controversy was held by the defendant and those under whom he claimed, under a claim of title, legal or equitable, commencing before such forfeiture, and continuing for seven years uninterruptedly, before the institution of the suit, that it would bar a recovery in this action.
The court also, in reply to an enquiry of the defendant's counsel, expressed the opinion that the forfeiture of the land granted to Girond did not accrue or become complete " until the decree of forfeiture was entered declaring the land to be forfeited."
To all these opinions of the court the plaintiffs excepted; and the jury having found a verdict for the defendant, he moved the court to set it aside and grant him a new trial. This motion was overruled, and the defendant again excepted; this bill of exceptions setting out the facts proven in the cause by reference to the first bill of exceptions in which they were fully stated. The court gave judgment for the defendant; and the plaintiff obtained a supersedeas from this court.
Fisher, for the appellant.
There was no counsel for the appellee.
It is a maxim of great antiquity in the English law, that no time runs against the crown, or as it is expressed in the early law writers, " nullum tempus occurrit regi. " Magdalen College Case, 11 Coke 68-74; S C. 1 Roll. R. 151; Bracton, lib. 2, ch. 5, § 7; Britton, ch. 18, p. 29; 8 Bac. Abr. " " Prerogative," E, p. 95; 7 Comy. Dig. " Prerog." D, 86, p. 90. And it may be laid down as a safe proposition, that no statute of limitations has been held to apply to suits by the crown, unless there has been an express provision including it. United States v. Hoar, 2 Mason's R. 311.
The reason sometimes assigned why no laches shall be imputed to the king, is, that he is continually busied for the public good, and has not leisure to assert his right within the period limited to subjects. Coke Litt. 90; 1 Black. Com. 247. A better reason is, the great public policy of preserving public rights and property from damage and loss through the negligence of public officers. Sheffeild v Ratcliffe, Hob. R. 347; United States v. Hoar, 2 Mason's R. 311; The People v. Gilbert, 18...
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