Middleton v. Arnold

• Decision Date: 04 September 1856
• Citation: 54 Va. 489
• Parties: MIDDLETON for Warren's heirs v. ARNOLDS.
• Court: Virginia Supreme Court

54 Va. 489

MIDDLETON for Warren's heirs v. ARNOLDS.

Supreme Court of Appeals of Virginia.

September 4, 1856

(Absent ALLEN, P. and LEE, J.)

A conveyance of a pretensed title to land is not void; and the bonds given for the purchase money for the same are valid.

This was an action of debt in the Circuit court of Lewis county brought in 1846 by Henry O. Middleton, for the use of John Warren's heirs against George Arnold and others, upon four single bills for one hundred dollars each, given for the purchase of the right of John Warren's heirs to a certain tract of land in the county of Lewis. The issues were finally made up upon five pleas filed by the defendants in September 1854. The first was the plea of payment, on which the plaintiff took issue. The other four pleas were in substance the same, and alleged that the single bills declared on were given for a pretensed title to a tract of land, purchased of Warren's heirs through their agent Middleton, and negativing in their plea all the exceptions in the statute against buying pretensed titles. To these pleas the plaintiff demurred; and the court overruled the demurrer, and rendered a judgment thereon for the defendants. Whereupon Middleton applied to this court for a supersedeas, which was allowed.

Robert Johnston and Fry, for the appellant.

Hoffman, for the appellees.

MONCURE J. delivered the opinion of the court:

It is certainly true, as a general rule, that a contract founded on an act forbidden by a statute under a penalty is void, although it be not expressly declared to be so; and that no action lies to enforce it. It is also true, that if such void contract be by deed, the parties thereto are not thereby estopped from showing the illegality of the act which makes the contract void. The numerous authorities cited by the counsel for the defendant in error abundantly sustain the verity of these propositions. The main question arising in this case is, Whether a conveyance of a pretensed title comes under the general rule, and was made void by the operation of the act passed December 6, 1786, entitled " an act against conveying or taking pretensed titles?" 1 Rev. Code 1819, ch. 103, p. 375.

That act does not declare the conveyance void, but prohibits it under the penalty of forfeiture, both by the vendor and vendee, of the value of the land conveyed; one moiety to the commonwealth and the other to him who will sue as well for himself as for the commonwealth; unless the vendor, or those under whom he claims, shall have been in possession of the same, or of the reversion or remainder thereof, one whole year next before; though it provides that any person lawfully possessed of land, or the reversion or remainder thereof, may take, or bargain to take, the pretensed title of any other person, so far, and so far only as it may confirm his former estate.

Not long after the passage of the act, and as early as 1802, its construction and effect were considered by this court in the case of Duval v. Bibb, 3 Call 362; and the court were of opinion that the act imposed a penalty, but did not avoid a conveyance. That such was the opinion of the court, does not appear from the case itself; but the fact is so stated by Judge Roane in Tabb v. Baird, Id. 476, 481, decided in the following year. Judge Carrington, in the last case, also declared that the act merely creates a penalty, and does not affect the right. The same opinion has been expressed by some of the judges in several subsequent cases; as by Brooke, P. in Allen v. Smith, 1 Leigh 231, 254, and by Tucker, P. in Williams v. Snidow, 4 Id. 16, 17. No judge, so far as I have seen, has ever expressed a contrary opinion. The law is so laid down in our text books. 2 Tuck. Com. book 2, p. 215; 2 Lom. Dig. p. 10; and has been so uniformly and universally regarded in Virginia. It has been approved by the legislature, as is shown by the fact that no law has ever since been passed to the contrary, although there have been two general revisions of the laws since this opinion has been thus authoritatively promulgated. In the latter of these revisions, that of 1849, the propriety of this opinion was strongly indicated, not only by the omission of the act of 1786, but by the adoption in the Code, ch. 116, § 5, p. 500, of a provision, that " any interest in or claim to real estate may be disposed of by deed or will." After all these judicial and legislative recognitions of this opinion, and after it has so long and universally been regarded and followed as a correct exposition of the act of 1786, it is now too late and would be attended with wide spread evil, to reverse it; and it must therefore be regarded as the settled law of the land: especially as its propriety is now for the first time questioned, after the act itself has been repealed, and one of an opposite nature adopted in the Code.

But even if the subject were res integra, we think the opinion would be reasonable. The act of 1786 is substantially a re-enactment of the statute, 32 Hen. 8, c. 9, § 2 and 3. That statute was passed for a different age and country, and never suited the state of things existing here. It is justly characterized by an eminent law writer as a " severe statute," even without reference to any effect it might have in avoiding the contract of the parties. 4 Kent's Com. 447. And President Pendleton speaks of it in the same way in delivering the resolution of the court in Duval v Bibb. Its literal import has been much restricted by subsequent decisions, even in England; one of which is the case of Partridge v. Strange, Plowd. R. 77, in which the subject was very fully argued and considered in ...