Stull v. Rich Patch Iron Co.

Buchanan, J., delivered the opinion of the court. Upon the first trial of this cause, which is an action of ejectment, there was a verdict in favor of the defendant in the court below, the plaintiff in error here. That verdict was set aside upon the motion of the plaintiff, the defendant in error. To this action of the court the defendant excepted. Upon the next trial the jury failed to agree, and upon the third and last trial the plaintiff company demurred to the evidence. In this demurrer the court required the defendant to join, and, upon consideration, gave judgment in favor of the plaintiff for the land in controversy, except some twenty acres, which the plaintiff admitted it had no right to recover. From the action of the court in setting aside the verdict upon the first trial, and in rendering judgment in favor of the plaintiff on the demurrer to the evidence upon the last trial, this writ of error was awarded. — 274 — The facts were substantially the same upon both these trials, and it is conceded that if the judgment in favor of the plaintiff upon the demurrer to the. evidence was erroneous, then its action in setting aside the verdict of the jury upon the first trial was also erroneous. It is admitted that the plaintiff connected itself with the Commonwealth by a regular chain of title to the land in controversy, and had the right to recover, unless the defendant made good his defence of adverse possession for more than fifteen years prior to the institution of this action. The defendant, to make out his defence under the statute of limitations, introduced in evidence a deed from R. R. Weir and wife, dated May 26, 1834, to John Deeds, Sr., for the tract of land in controversy, described by metes and bounds, and represented as containing one hundred and seventy-eight acres, though in fact it only contained one hundred and nineteen acres. The defendant connected himself with the Weir title by a regular chain of conveyances, but it does not appear that Weir and wife had any title to the land conveyed by their deed, which lies wholly within the boundaries of the plaintiff’s survey. Deeds, the vendee of Weir and wife, took possession of the land under his deed, cleared and fenced a few acres, claiming title to the whole boundary embraced by his deed. Additional land was cleared from time to time, so that at the time of the trial there were about twenty acres cleared and under fence. The defendant, and those under whom he claims, have continuously held and cultivated the cleared land from the time Deeds took possession in 1834, claiming title to the whole boundary embraced by the deed from Weir and wife. They also cut rail-timber upon the wooded land adjoining the cleared land, with which to build and repair fences upon the land; but a large part of the boundary remained entirely in a state of nature. — 275 — At the time Deeds purchased the land in controversy and took possession under his deed, no one was in the actual possession of any portion of the plaintiff’s 9,000-acre survey, claiming under that title. Afterwards, in the year 1842, David Wilson, who was then the owner of the plaintiff’s survey, placed a tenant upon the land, and soon afterwards placed other tenants upon it. Prom the year 1842 to the institution of this action, the plaintiff, and those under whom he claims, have had one or more tenants upon the large survey outside of the lands in controversy, hut never had any one upon, nor exercised any acts of ownership over, the land in controversy. Upon this state of facts the Circuit Court was of opinion that the defence of adversary possession had not been made out, except as to that part of the land which was under fence, and which the plaintiff admitted it had no right to recover. It is settled in this State that when a person, having colorable title, enters upon vacant land, claiming title to the whole tract covered by his title papers, his possession is coextensive with his boundaries, and this is true although the title conveyed by the writing under which he claims is worthless. Creekmur v. Creekmur, 75 Va. 431, 439; 1 Lomax Dig. 797; 2 Minor’s Inst. 481 (4th ed.) In Taylor v. Burnsides, 1 Gratt., at pages 191-2, Judge Baldwin says “that the adverse claimant entering and holding under a colorable title, (for example, a patent, deed, or other document,) upon a vacant possession, gains the actual possession to the extent of his boundaries,” (and this doctrine) “is sustained by numerous authorities, and contradicted by none that I have seen.” In Overton's Heirs v. Davisson, 1 Gratt. 223-4, the court said: “ The court is further of opinion that where the land in controversy is embraced by conflicting grants from the — 276 — Commonwealth to different persons, and the junior patentee enters thereupon and takes and holds actual possession of any part thereof, claiming title to the whole under his grant, that such adversary possession of part of the land in controversy is an adversary possession of the whole, to the extent of the limits of the younger patent; and to that extent is an ouster of the seisin or possession of the older patentee, if the latter has had no actual possession of any part of the land within the limits of his grant.” In such a case, that is, where the true owner has only constructive possession, never having entered upon his land, “ if the.junior claimant,” says Judge Lee, in delivering the opinion of this court in Koiner v. Rankin, 11 Gratt. 427, “settle upon the land within the interlock, claiming title to the whole within his boundary, he thereby ousts the senior patentee of his constructive possession, and becomes actually possessed to the extent of his grant,” and cites several Kentucky cases with approval, among them the case of Fox v. Hinton, reported in 4 Bibb 559, which holds that where “ two patents interfere in part, and, before possession is taken under the elder patent, the junior patentee enters upon the land within the interference, with an intention to take possession, he shall be construed to be in possession to the extent of his claim.” In discussing the question, on page 560, the Kentucky court said : “ There is no doubt that, according to the settled doctrine of the common law, a person might, by entering upon a part of a tract or parcel of land in the name of the whole, gain the possession of the whole, where the posssession was at the time of making such entry vacant.” In Cline’s Heirs v. Catron, 22 Gratt., at page 392, this court said upon the subject, that “ to be actual, the visible occupancy and improvement of a part of the land in controversy is an actual possession of the whole to the limits of the claim under which it is held, and ousts or interrupts the legal seisin incident to the patent of the senior grantee.” — 277 — The possession thus acquired by the junior claimant when he enters upon the land in controversy, improving and cultivating a part, and claiming title to the whole, is an actual possession of the whole land within his boundary. And whilst such possession, as was said by Judge Baldwin, in Taylor v. Burnsides, cited above, may be more manifest as to a part than as to the rest, yet, in reference to the whole, possession of part is possession of the entire tract. Thus the real or apparent owner, dwelling on his farm, is as truly in the actual possession of his woods and waters as of his pastures, fields, and gardens. What is the whole is to be determined by the limits owned or claimed. An intruder, without color of title, is of necessity confined to his mere enclosure. There must be limits to his possession, and these are all he can have. Such (enclosures), however, are not the boundaries of the real or apparent owner ; his marked or described abuttals show the extent, not merely of his claim, but of his exclusive sway. The possession, therefore, of the junior claimant in such a case is both acñial and exclusive; and if such possession be not abandoned during the statutory period by the junior claimant, or he be not actually ousted of such possession by the entry upon, and actual possession of some part of the land in controversy by the claimant under the senior grant, during that period, his title becomes perfect. In this case,, when the claimant under the deed from Weir and wife entered, in the year 1834, upon the 119-acre tract of land, enclosing and cultivating a part, and claiming title to the whole, his possession was co-extensive with his boundaries, there being at that time no one claiming under the plaintiff’s title in the actual possession of any part of his survey. The claimant under the Weir title having thus ousted or disseised the claimant under the plaintiff’s title, he was in the actual adverse possession of the whole boundary claimed by him, and the statute of limitations then com — 278 — menced to run in his favor, not only as to that part of the land which he had enclosed, but as to all his tract. Before the period had elapsed necessary to make good the title of the junior claimant under the statute of limitations, those under whom the plaintiff claims entered upon, and took actual possession of, the plaintiff’s survey, outside of the land in controversy. This entry and possession, it is most earnestly contended by the counsel of the plaintiff, operated to oust or dispossess the claimant under the Weir title of the whole of the land in controversy, except that part which was enclosed. We are referred to cases decided by the Supreme Court of the United States and the highest courts of Pennsylvania and of other States, as sustaining this view. The decisions of the Supreme Court of the United States upon questions of land titles follow the decisions of the courts of the States respectively in which the land in controversy is located, and are, therefore, for the most part, based upon local statutes and decisions. Por, as was said by Mr. Justice Catron, in White v. Burnly, 20 Howard, at page 251, “ we have endeavored carefully to follow the doctrine of the Supreme Court of Texas in this opinion, because we are bound to follow the settled adjudications of that State in cases affecting titles of land there.” Supervisors v. United States, 18 Wall., at page 82; Balkam v. Woodstock Iron Co., 154 U. S. 177, 187. If, therefore, the question now under consideration were an open question in this State, we could gain but little aid from the decisions referred to, unless we knew that they were based upon statutes similar to section 2740 of our Code, which provides that “ in a controversy affecting real estate, possession of part shall not be construed as possession of the whole, where actual adverse possession can be proved.” But the question involved in this case, we think, was raised — 279 — and decided in this State as far back as 1844, in the case of Taylor v. Burnsides, reported in 1 Gratt. 165. The judgment of the court in that case (in which all the judges sitting concurred), beginning at page 209, says : “ The court is of opinion that the instruction given by the said Circuit Court to the jury on the trial of the cause ought not to have been given, but that, in lieu thereof, the said Circuit Court ought to have instructed to the effect following.” Then follows five instructions, which the court declares ought to have been given. The fourth and fifth of these instructions are as follows: “ é. The tenant cannot sustain his said defence of continued adversary possession, if it shall appear from the evidence, that the demandants, or those under whom they claim, did, within said period of twenty-five years, enter upon the-land in controversy, and take actual possession thereof by such means as are mentioned in the second instruction. “ 5. That such entry of the demandants, or those under whom they claim, upon, and possession of, the land within their older grants, not embraced by the younger grant of the tenant, could not have the effect of an entry upon and possession of the land in controversy.” This latter instruction holds that an entry upon and possession of the land within the older grant, not embraced within the younger grant, does not have the effect of an entry upon and possession of the land in controversy where the junior patentee had, prior to that time, entered upon and was then actually occupying part of the laud in controversy by building, clearing, cultivating, or enclosuring it, claiming title to the whole. This view must necessarily follow, since, under our decisions, the entry of the junior claimant upon the land in controversy, and his occupancy thereof by building, clearing, cultivating, or enclosing a part, and claiming , title to the — 280 — whole—the claimant under the senior patent not then being in actual possession of any part of his tract—gives the junior claimant actual and exclusive possession of his whole boundary. The possession of the claimant under the junior title, being an actual adversary possession, to the whole extent of his boundary, the entry and actual possession of the claimant under the senior grant, of lands outside of the lands in controversy would not have the effect of ousting or disturbing the claimant under the júnior title as to any part of his trac£. The entry, to be good for such purpose, must be made upon the land in controversy; for to oust an actual possession there must be an entry upon, that possession. This was expressly held in Fox v. Hinton, 4 Bibb 559-60, referred to above, and cited with approval by Judge Lee in Koiner v. Rankin. If the subsequent entry of the claimant under the senior grant on his tract, outside of the land in controversy, would have the effect of ousting the claimant under the junior grant of any part of his boundary, then he might be ousted or dispossessed not only without his knowledge, but without any means of acquiring knowledge, and without even knowing that any person other than himself claimed title to the land. Under the loose system of granting lands in force at an early day in this State, it is well known that the same land was frequently granted to two or more persons, without any fault upon their part. The claimant under the junior grant, thinking that he had good title to' the land, entered upon and actually occupied a part, claiming title to his whole tract. He afterwards sells it for a full price, and his vendee takes a like possession and makes a like claim to the whole tract; and thus the land may be held, as in this case, for fifty years or more. The claimant under the senior grant then brings his action to recover the land embraced in the. boundaries of the junior grant. Upon the trial of the case, — 281 — the claimant under the junior grant learns for the first time that the senior grantee, or those who claim under him, had, before the statute of limitations had run in favor of those claiming under the junior grant, entered upon a part of the land embraced in the boundaries of the senior grant, five or may be twenty miles away (for these grants frequently contained from 100,000 to 500,000 acres), and had cleared and cultivated a few acres, claiming title to the whole tract. To allow a plaintiff to recover under such circumstances would work the grossest injustice to the claimants under the junior title. The claimant under the senior patent knows, or ought to know, his own boundaries, and that another has settled within them, claiming and exercising dominion over the lands in controversy, and if under these circumstances he remains quiet, allows the claimant under the junior grant to believe he is the true owner of the land, and fails to assert his right to the land in controversy by action or entry within the statutory period, he ought not to be allowed to recover. The statutes of limitations in real actions are founded upon a wise and salutary public policy. They require nothing but reasonable vigilance upon the part of the owner, and are necessary for the repose of bona fide settlers in the regions of our wild and uncultivated lands. The question involved in this case is not, as counsel for the plaintiff contends, the question left undecided in the cases of Taylor v. Burnsides and Overton v. Davisson, 1 Gratt., and in later cases. The question is this, viz.: Does the adverse possession of a claimant under a junior title extend to the whole of his tract, or only to the extent of his enclosures, where there are conflicting grants or deeds to lands causing an interlock, the claimant under the older title being in actual possession of a part of his land outside of the interlock, when the claimant under the junior title entered upon and took — 282 — actual possession of a part of the interlock, claiming title to the whole extent of his boundary ? That is still an open question in this State, and, as it does not arise in this case, we do not wish to be understood as expressing any opinion upon it. It follows from what has been said that the Circuit Court erred in setting aside the verdict of the jury upon the first trial, and that all proceedings in the case in the Circuit Court subsequent to that verdict must be reversed and set aside, and judgment entered upon that verdict for the defendant. Reversed.