Wild's Lessee v. Serpell
| Decision Date | 09 September 1853 |
| Citation | 51 Va. 405 |
| Parties | WILD'S lessee v. SERPELL. |
| Court | Virginia Supreme Court |
1. The statutes of Virginia forfeiting lands to the commonwealth for the failure of the owners to enter them upon the commissioners' books and pay the taxes due thereon, are constitutional.
2. The forfeiture under these statutes is perfected without a judgment, decree or other matter of record, or an inquest of office; but by the operation of the statutes the title is divested out of the owner and is vested in the commonwealth.
3. In such cases where the title is vested in the commonwealth, and the forfeiture enures to the benefit of a third person claiming under the commonwealth by virtue of another and distinct right, the transfer of the title to such person is in like manner, perfect and complete without any new grant from the commonwealth, or any proceeding to manifest the transfer, by matter of record or otherwise.
4. Land omitted to be entered by the owner on the commissioners' books, were forfeited under § 2 of the act of February 27th 1835, Sessions Acts 1834-5, p. 12; and the forfeiture became perfect and consummate on the 1st of November 1836, the period limited in which the forfeiture might be saved by complying with the provisions of the act of March 23, 1836. Sessions Acts 1835-6, p. 7.
5. A party claiming under a grant from the commonwealth issued in August 1836, cannot claim the benefit of an older title forfeited to the commonwealth, under the act of the 27th of February 1835, because by that act a forfeiture only enured to the benefit of those who claimed title under a grant from the commonwealth bearing date before April 1st, 1831.
6. Nor can such a party sustain such a claim under the provisions of the act of March 30th, 1837, unless he is a bona fide occupant of the land.
7. To sustain such a claim under § 16 of the act of March 16, 1838 Sessions Acts 1837-8, p. 21, the party must have been at the date of the act in the actual possession and occupancy of the land forfeited or parcel thereof, with title bona fide claimed or derived under grants from the commonwealth which issued subsequent to the 31st of March 1831 and prior to the 15th of January 1838.
8. By the act of March 18th, 1841, Sessions Acts 1840-41, p. 31 the forfeiture of title to the commonwealth only enures to the benefit of those then in actual possession of the forfeited land under claim of title through a grant from the commonwealth. Though at that time a party held a patent for the land, yet if he was in actual possession under a lease from another person claiming the elder title, that is not the actual possession contemplated by the statute.
9. By the act of March 22d, 1842, Sessions Acts 1841-2, p. 13, § 3, the title to forfeited lands is transferred to and vested in such persons, other than those for whose default the same may have been forfeited, as had title or claim legal or equitable, derived under a grant from the commonwealth bearing date prior to the 1st of January 1843; without making either actual occupancy or possession of the land, or a bona fide claim of title, any part of the condition on which the transfer of the title takes effect.
10. Though the land had been reported to the court as forfeited land, and an order had been made for the sale thereof, yet if not actually sold before the passage of the act, the title is transferred under the statute.
11. The act of March 22d, 1842, is retrospective in its operation.
12. A tenant who surrenders possession at the end of his term, or from whom possession is recovered, is not concluded by the existence of such tenancy at one time, or by the deed of lease which he executed, from contesting the title of his former landlord.
This was an action of ejectment in the Circuit court of Preston county by Henry Wild's lessee against Richard Serpell.
The case is stated by Judge Lee in his opinion.
Price, for the appellant.
There was no counsel for the appellee.
This is an action of ejectment by the plaintiff in error against the defendant, brought in the Circuit court of Preston county.
The plaintiff claimed under a grant from the commonwealth to his lessor Henry Wild, for seventy-nine acres of land in Preston county, bearing date the 31st of August 1836. The defendant claimed under a grant to Francis and William Deakins for three hundred acres of land, bearing date on the 2d day of December 1785. This grant embraced within its boundary sixty-nine and a half acres of the land covered by the grant subsequently issued to the lessor of the plaintiff.
The defendant deduced title to the three hundred acre tract by a regular succession of conveyances from the patentees down to himself. He also proved that on the 23d of June 1840 the lessor of the plaintiff executed a written instrument, under seal, by which he acknowledged that he had on that day rented of John Hoye and William Deakins (who then claimed the land under the Deakins grant,) the said tract of three hundred acres, for one year ending on the 1st of April 1841, at which time he thereby bound himself to surrender possession, or rent or purchase the land. It was also shown that in 1841 the lessor of the plaintiff having failed to surrender possession of the land, a writ of unlawful detainer was sued out against him, and possession recovered by the defendant; and that the defendant held the possession at the institution of this suit.
The plaintiff claimed, however, that all title under the grant of the three hundred acre tract to the Deakinses had been forfeited to the commonwealth by the failure of the owners to comply with the provisions of the statutes concerning delinquent and omitted lands; and that by virtue of the same statutes this forfeiture enured to his benefit, and the title had become transferred to and vested in him, for so much of the land forfeited as was embraced within the boundary of his patent for seventy-nine acres.
He accordingly shewed that he had had his land regularly entered on the books of the commissioners of the revenue and charged with taxes, and that he had paid all taxes properly chargeable upon it; but that the tract of three hundred acres granted to the Deakinses had never been entered on the books nor charged with taxes, till the year 1839, when the same was entered upon said books, but was not charged either with any arrears of taxes or with any damages; and that the same had been subsequently by a decree of the Circuit court of Preston county, pronounced on the 7th day of September 1841, directed to be sold as land forfeited to the commonwealth under the provisions of the laws then in force. A sale took place under this decree in June 1842, and John Hoye became the purchaser; and this sale was subsequently confirmed by the court.
The facts having been submitted to the court for its judgment in the form of a case agreed, the court was of opinion that the law was for the defendant, and judgment was rendered accordingly. And to this judgment a supersedeas from this court has been allowed.
That the provisions of our statutes passed from time to time, making it the duty of the owners of lands to pay all taxes properly chargeable thereon, and where they have been omitted from the books of the commissioners of the revenue, to cause them to be entered thereon in the proper counties, and to be charged with all arrearages of taxes and damages, and to pay all such arrearages as shall be found not to be released by law; and in case of failure so to do, forfeiting to the commonwealth all right and title whatever of the parties in default, (under the modifications and restrictions provided by the acts,) are within the constitutional competency of the legislature, has been sufficiently affirmed in decisions which have been made during the present term of this court in cases arising under these several statutes. Staats' lessee v. Board, supra 400; Smith's lessee v. Chapman, infra; Hale v. Branscum, infra. The same cases also sufficiently establish that in order to consummate and perfect a forfeiture in such a case, no judgment or decree or other matter of record, nor any inquest of office, is necessary; but that the statutes themselves, of their own force and by their own energy, work out their own purpose, and operate effectually to divest the title out of the defaulting owner, and perfectly to vest it in the commonwealth without the machinery of any proceeding of record, or anything in the nature of an inquest of office. And as the title is thus in a proper case divested out of the owner and vested in the commonwealth by the operation of the statutes, so where the forfeiture enures to the benefit of a third person claiming under the commonwealth by virtue of another and distinct right, the transfer of the title to such person is in like manner perfect and complete without any new grant from the commonwealth, or any proceeding to manifest the transfer by matter of record or otherwise. Upon these subjects I have nothing therefore to say upon this occasion, except that considering the peculiar condition of things in that part of the state lying west of the Alleghany mountains, and the serious check to population and the improvement of the country and the development of its resources growing out of it, a resort to the stringent measures of legislation that were adopted was, in my opinion, as wise and expedient as the constitutional power of the legislature to enact them was clear and unquestionable.
In this case, the tract of three hundred acres granted to Francis and William Deakins in December 1785, having never been entered upon the books of the commissioners of the revenue in any county, nor charged with taxes according to law prior to the year 1839, was therefore clearly...
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