Opinion
09-09-1853
HALE v. BRANSCUM.
Floyd, for the appellant, submitted the case. There was no counsel for the appellee.
1. Land having been forfeited under the act of 1835, Sess. Acts, p. 11, for failure to enter them on the commissioners' books, that forfeiture was complete on the 1st day of November 1836. Sess. Acts 1835-6, p. 7.
2. From the time of the forfeiture time will not run in favor of a party in possession against the commonwealth or those claiming under her by patent.
3. By the operation of the act of March 5th, 1836, Sess. Acts, p. 7, the title acquired by the commonwealth by such forfeiture vested in the party obtaining a patent for the land in June 1846.
This was a writ of right in the Circuit court of Carroll county, brought in August 1846, by Fielden L. Hale against James Branscum, to recover a tract of seven hundred and ninety acres of land. The mise was joined on the mere right; and on the trial which took place in August 1848, the jury found a special verdict. In this verdict it was found that the tenant had been in possession of the land in controversy for about twenty years. That this land was covered by a patent to Nathaniel Anderson for one thousand acres of land bearing date on the 5th of July 1798. That the land had not been on the commissioners' books of the county of Grayson before the county of Carroll was established, for the last twenty years, and had not been on the commissioners' books of the county of Carroll since its establishment, in the name of the said Nathaniel Anderson or any person holding title under him. That seven hundred and ninety acres of the land embraced in the patent to Anderson, were granted to the demandant Hale by patent bearing date the 30th day of June 1846, and were duly entered upon the commissioners' books in his name, and the taxes had been regularly paid by him. Upon this special verdict, the court rendered a judgment for the tenant. Whereupon Hale applied to this court for a supersedeas to the judgment, which was awarded.
Floyd, for the appellant, submitted the case.
There was no counsel for the appellee.
OPINION
ALLEN, J.
It appearing from the facts found in the special verdict, that a patent issued to Nathaniel Anderson on the 25th July 1798, for 1000 acres of land lying and being in the county of Grayson; that by virtue of the acts of February 27th, 1835, Sess. Acts, p. 11, and of March 23d, 1836, Sess. Acts, p. 7, said tract of land became forfeited for the failure to enter the same with the commissioner of the revenue, and to pay the taxes thereon, in the manner prescribed in the second section of the first recited act; the court, for the reasons assigned in the case of Staats v. Board, supra 400, is of opinion, that the forfeiture was complete on the first day of November 1836. That even if any adverse possession could be set up to impede the collection of taxes which were a lien on the land, in this case no such possession is shown; as the period which intervened between the commencement of such possession and the 1st of November 1836 would not have operated as a bar to a recovery by the original proprietor in a writ of right; and from and after the forfeiture the adverse possession did not run against the commonwealth. And the court is further of opinion that such title so vested in the commonwealth by the said forfeiture, was by the operation of the act of March 5th, 1846, transferred to and vested in the demandant, for so much thereof as was embraced within the boundaries of his patent for seven hundred and ninety acres, dated the 30th June 1846. The court is therefore of opinion that the law, upon the facts found by the jury in their special verdict, is for the demandant. Judgment reversed; and this court proceeding, & c.
JUDGMENT REVERSED.