State v. King
| Decision Date | 26 October 1915 |
| Docket Number | 2676. |
| Citation | 87 S.E. 170,77 W.Va. 37 |
| Parties | STATE v. KING ET AL. |
| Court | West Virginia Supreme Court |
Submitted October 8, 1915.
Rehearing Denied Dec. 17, 1915.
Syllabus by the Court.
The doctrine of "color of title" is not literally a part of the statute of limitations. It is really a judicial addition to its terms by construction, in obedience to its spirit and purpose, or an implied legislative adoption of a judicial fiction devised for beneficent purposes.
Being a mere judicial fiction used in the administration of the statute in order to effectuate its full, fair, and just purpose, the doctrine imposes no duty upon the courts to permit it to be used for the achievement of unjust or fraudulent results.
Courts never set up a fiction to work an injury to any person, nor allow one so to operate.
A deed made by a person to a trustee for himself, or to himself by another, at his solicitation and without consideration, for land he does not own nor occupy and in which he has no interest, or for such land in addition to his actual possession, with specific intent and purpose to use the same as color of title, cannot be so used by him. His fraud denies it the virtue, force, and effect of color of title in his hands.
The phrase, "color of title," is used in section 3 of article 13 of the Constitution of this state and section 40 c. 31, Code 1913 (ser. sec. 1099), in the sense in which it is used in the judicial administration of the statute of limitations and other judicial proceedings.
Appeal from Circuit Court, Marion County.
Suit by the State against Henry C. King and others. From the decree Henry C. King appeals. Reversed and remanded.
Maynard F. Stiles, of Charleston, for appellant.
E. T England, of Logan, John W. Mason, Jr., of Fairmont, and Campbell, Brown & Davis, of Huntington, for the State.
While the well-known suit of the state against Henry C. King, for sale of the lands embraced in the Robert Morris grants, as having been forfeited for nonentry for taxation, was pending one Bruce McDonald, on the 10th day of April, 1906, executed a deed to J. D. Lowry, trustee, for a tract of land, containing about 200 acres lying within one of the Morris grants, some portions of which had previously been cleared and occupied by "squatters," none of whom claimed ownership of it. McDonald had never occupied it and held no paper title thereto, either good or bad. Its location within the boundaries of one of the Morris grants is admitted. It may lie within the lines of another grant made to George Keith Taylor. At the date of the execution of the deed, the title was in the state, subject to a right of redemption by King, unless some other person held a better right under the Taylor grant. Lowry himself admits the deed was made for the express purpose of acquiring the state's title, by possession and payment of taxes under it. On the 9th day of December, 1912, he filed his petition in the cause of the state against King, exhibiting the deed, alleging such possession and payment of taxes, and praying dismissal of the tract from the suit and dismissal of King's petition to redeem, in so far as it pertains to this tract. By a decree entered on the 3d day of June, 1913, the circuit court, on proof of the facts alleged in Lowry's petition, granted the relief therein prayed for, and King has appealed.
The beneficiaries of the trust referred to in the deed are not disclosed by its terms, but the petitioner admits, in his testimony, that they are Bruce McDonald, Bilton McDonald, and Millard McDonald. Manifestly, the purpose of the deed was a technical compliance with the letter of the transfer provisions of section 3 of article 13 of the Constitution, and section 40, c. 31, Code (ser. sec. 1099). The argument of counsel in support of the decree proceeds upon the theory of the sufficiency of a mere literal compliance with the terms of the constitutional and statutory provisions, which are alike in all respects. Each requires only actual and continuous possession, under color or claim of title, for specified periods, and payment of taxes for any period of five years during such possession, or after a certain date. The provisions do not define these terms "color or claim of title," and on this omission and the implied invitation of strangers to take possession of forfeited land and pay the taxes thereon is based the theory of right under which the deed was executed, possession taken, taxes paid, and the petition filed.
The well-known distinction between possession under claim of title and possession under color of title need not be noticed. Only the latter is involved here, and the only inquiry is whether the petitioner, under the true interpretation of these terms, has been in possession under color of title. Though the provision does not specifically require the element of bona fides in the claimant or person to whom the title inures by possession and payment of taxes, it has been said his position is that of one who relies upon the doctrine of adverse possession, and that he may be a claimant in good faith, however defective his color of title may be, so long as his claim is not predicated upon a fraud or breach of trust, and, further, that a bona fide claimant, having right to prevent forfeiture by payment of taxes, within the meaning of the Virginia statutes operative here, before division of the state, and of the Constitution, need have nothing more than an honest belief in the verity of his claim, founded upon reasonable grounds therefor. State v. Lumber Co., 64 Wa. Va. 673, 694, 63 S.E. 372.
In the law of adverse possession, the requirement of good faith does not relate to the act of entry or occupation. Occupancy may take place with express purpose and intent to seize and hold the land against persons known to have superior and even unquestionable title. This may be done by one whose paper title is utterly worthless, because it is a junior patent or has incurable infirmities and defects. One of the requirements of such occupation is that it be hostile to all other claimants and in violation of such rights as they have. No other sort of an entry or occupancy is within the protection of the law of adverse possession. If a man, believing himself to have some right or title in land, enters upon it as the tenant of another claimant, his holding is not adverse, but subordinate, to the right of such other person. He must claim the land as his own. He may purchase a defective or void title, with intent and purpose to occupy and hold the land under it, and thus ultimately acquire perfect title. The question presented here is, however, an entirely different one, namely, whether, for the purpose of seizing and occupying land which does not belong to him, he may fraudulently start a paper title, as by the forgery of a paper or corrupt procurement of the execution of one by a person who he knows has no title to the land. Possession obtained by fraud is protected by the statute, in many instances, but will the courts permit a fiction of their own creation, the doctrine of color, to be used as an inst rument for the accomplishment of actual fraud?
Color of title is not, in law, title at all. It is a void paper having the semblance of a muniment of title, to which, for certain purposes, the law attributes certain qualities of title. Its chief office or purpose is to define the limits of the claim under it. Nevertheless, it must purport to pass title. In form, it must be a deed, a will, or some other paper or instrument by which title usually and ordinarily passes. Such qualities as are imputed to it by the law, for limited purposes, are purely fictitious and are accorded to it only to work out just results. Fictions are never used in procedure or law for any other purpose. State v. Lumber Co., 64 W.Va. 673, 679, 63 S.E. 372; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; Hussman v. Durham, 165 U.S. 144, 17 S.Ct. 253, 41 L.Ed. 664; Bouv. Law Dic. Title Fiction. In the light of the character and function of this doctrine, a deed made by a man to himself could not well be supposed to have the characteristics of color of title. It would not purport to pass title, for, by such a deed a person could not, in the nature of things, pass title, out of himself and back into himself again. Besides, the paper is such, in character and purpose, as is seldom or never found in ordinary transactions. Nor would a deed forged or otherwise fabricated by a man, for his own purpose, fall within the spirit of this doctrine, the real design and purpose of which is the protection of persons who have honestly entered into possession of land and held it for the statutory period, under apparent paper title. It was devised to answer the requirements of the innumerable cases of entries upon and occupations of land, under defective conveyances by men who have paid money for them and devoted their time, labor, and means to the improvement of land, and the eviction of whom, under such circumstances, would be unjust, inequitable, and ruinous. Prevention of such results is within the public policy of the state, evidenced by the statutes of repose. Keeping in mind this general purpose and the class of instruments to which it ordinarily applies, the doctrine fairly and conclusively assumes that there has been a transaction between two or more persons by which a futile effort to pass title from one to another has been made, a transaction in which the actors were prompted by good intentions and honest motives, or that the abortive product of a corrupt or fraudulent transaction has subsequently become a subject of investment or dependence by persons other then the perpetrators of the fraud. To permit it to become the shield and...
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