APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.
MR. JUSTICE HARLAN delivered the opinion of the court.
The appellees, who were the plaintiffs below, are the children and heirs at law of Allen T. Caperton, who, the bill alleged, was seized and possessed at the time of his death of an estate in fee in various tracts of land in West Virginia which are fully described in the pleadings.
The appellants, who were defendants below, assert ownership of the same lands.
The object of the present suit -- which was removed from one of the courts of West Virginia -- was to obtain a decree annulling the deeds under which the defendants claim title, and thereby remove the cloud created by them on the title of the plaintiffs. By the final decree those deeds were set aside as inoperative, fraudulent, and void, and as clouds upon the plaintiffs' title, "so far as they and each of them overlap and include any of the lands of the said plaintiffs as laid down and shown upon the map filed with the papers of this cause, marked 'Map of the lands in the suit of Caperton's Heirs v. Rich and others, Decree Map.'"
Attention will first be directed to the title asserted by the plaintiffs. They derive title from numerous patents and deeds, as follows:
1. A patent from the Commonwealth of Virginia, dated March 25th, 1795, to Robert Morris for 153,900 acres of land in the county of Greenbrier; a deed from Robert Morris and wife, dated March 13th, 1797, conveying to William Crammond several tracts, including the above tract of 153,900 acres; a deed from William Crammond and wife, dated October 28th, 1814, to Thomas Astley, covering all the above lands conveyed by Morris and wife to William Crammond; a deed dated December 10th, 1840, to Henry Crammond from Littleton Kirkpatrick and wife, (the latter being the only heir at law of Thomas Astley,) and Sarah Astley, the widow of Thomas Astley, embracing the lands covered by the deeds from Morris and wife and William Crammond; a deed by Henry Crammond to John Williams, dated December 21st, 1842, conveying to the latter the tract of 153,900 acres.
2. A deed to Caperton by John Williams and wife, dated February 21st, 1850, conveying to the grantee 77,104 acres of the tract of 153,900 acres named in the Morris patent. Caperton sold and conveyed a part of the land embraced by this deed, so that, at his death, he claimed to own only 41,171 1/2 acres of the above 77,104 acres.
3. A patent from the Commonwealth of Virginia to Abner Cloud, assignee of Lewis Franklin, dated March 10th, 1790, for 5000 acres in Harrison County, on the waters of Gauley River. By a change in the lines of counties this tract was included in the county of Nicholas. It appears from the official records that these 5000 acres were forfeited to that Commonwealth in 1842 for the failure of the owner to enter them upon the books of the commissioner, and for non-payment of taxes. That fact being regularly reported by the commissioners of delinquent and forfeited lands to the Nicholas County circuit superior court, they were ordered by that court to be sold in the manner and upon the terms prescribed by law; and they were sold, John Williams becoming the purchaser. The sale having been confirmed, a deed was made to Williams June 20th, 1843, by the
commissioner of delinquent and forfeited lands for Nicholas County. Subsequently, February 21st, 1850, Williams and wife conveyed to Caperton the above 5000 acres as well as various other tracts that had been sold under the order of court by that officer and purchased by Williams.
4. A patent from the Commonwealth of Virginia to A. C. and D. B. Layne, dated September 1st, 1851, for 2738 acres in what is now Webster County, West Virginia. A. C. Layne and wife, by deed of March 18th, 1856, conveyed their interest to Douglas B. Layne, who, with his wife, by deed of April 12th, 1859, conveyed to Caperton.
5. Patents from the Commonwealth of Virginia to Austin Hollister, one dated November 1st, 1855, for 9330 acres, and the other dated February 1st, 1858, for 5938 acres, both tracts being in Randolph County. By deed of February 12th, 1859, Hollister and wife conveyed both of these tracts to Caperton.
It appears that in 1881 the children and heirs at law of Caperton -- he having died in July, 1876 -- presented to the circuit court of Webster County, West Virginia, a petition asking that they be allowed to redeem from forfeiture and sale the above tracts of 9330, 5938, 5000, and 2738 acres, as well as a tract of 500 acres, all assessed in the name of Caperton. The petition stated that there were no persons in condition to take the benefit of the forfeiture of those lands or any part of them under the provisions of section three of article thirteen of the constitution of the State, and that they were entitled to redeem the same in the manner provided by the thirteenth section of the act of the legislature of West Virginia, (Acts W. Va. 1872-3, p. 455, c. 134,) providing for the sale of escheated, forfeited, and unappropriated lands for the benefit of the school fund.
The section of Article XIII of the constitution of West Virginia to which reference was made in that petition is in these words:
"3. All title to lands in this State heretofore forfeited, or treated as forfeited, waste, and unappropriated, or escheated to the State of Virginia, or this State, or purchased by either of said States at sales made for the non-payment of taxes and become irredeemable, or hereafter forfeited, or treated as forfeited,
or escheated to this State, or purchased by it and become irredeemable, not redeemed, released, or otherwise disposed of, vested and remaining in this State, shall be, and is hereby transferred to, and vested in any person (other than those for whose default the same may have been forfeited or returned delinquent, their heirs or devisees) for so much thereof as such person has, or shall have had actual continuous possession of, under color or claim of title for ten years, and who, or those under whom he claims, shall have paid the state taxes thereon for any five years during such possession; or if there be no such person, then to any person (other than those for whose default the same may have been forfeited, or returned delinquent, their heirs or devisees) for so much of said land as such person shall have title or claim to, regularly derived, mediately or immediately from, or under a grant from the Commonwealth of Virginia, or this State, not forfeited, which but for the title forfeited would be valid, and who, or those under whom he claims, has or shall have paid all state taxes charged or chargeable thereon for five successive years, after the year 1865, or from the date of the grant, if it shall have issued since that year; or if there be no such person, as aforesaid, then to any person (other than those for whose default the same may have been forfeited, or returned delinquent, their heirs or devisees) for so much of said land as such person shall have had claim to and actual continuous possession of, under color of title for any five successive years after the year 1865, and have paid all state taxes charged or chargeable thereon for said period."
The statute referred to was that of November 18, 1873, entitled "An act to provide for the sale of escheated, forfeited, and unappropriated lands for the benefit of the school fund."
By that statute the former owner of lands, the title to which was in the State by forfeiture or purchase, and which were ordered to be sold by the proper circuit court for the benefit of the school fund, was allowed, upon proof of title superior to that asserted by any other claimant, to receive the excess over the taxes charged and chargeable thereon,
with interest at twelve per cent -- such exhibition and proof of title being made within two years after sale under the order of court. The former owner, or any creditor of such owner having a lien on the land, was also permitted, at any time before sale, to pay into court, with its consent, all costs, taxes, and interest due the State, and obtain an order releasing all former taxes on the land and suspending the sale thereof -- such payment, however, not to affect or impair the title to any portion of such lands transferred to and vested in any person in virtue of section three of Article XIII of the state constitution. Acts of W. Va. 1872-3, pp. 449, 454, 455, c. 134.
The commissioner of school lands, whose duty it was to ascertain the quantity of land in his county subject to sale under the above statute, (§§ 1, 2,) reported to the proper circuit court that the taxes and interest charged and chargeable against the tracts of 9330, 5938, 5000, and 2738 acres claimed by the heirs at law of Caperton, amounted to $1785.82; and against the tract of 500 acres, the sum of $18.69. The prayer of the petition was granted. The final order of the court contained these provisions: "The petitioners having exhibited to the court their title papers, showing that they have title to each of the five several tracts of land mentioned in their petition and amended petition aforesaid, regularly derived from the Commonwealth of Virginia, and the court, being of opinion that the petitioners have a good and valid title to said lands, and it not appearing that there is any person in condition to take the benefit of the forfeiture thereof, doth consent and order that petitioners may redeem said lands from forfeiture. And thereupon petitioners, with the consent of the court, paid into court, to the hands of the said Duffy, commissioner of school lands, $1804.51, being the amount of taxes and interest due on said lands at this date, and $4.50 costs of this proceeding. It is therefore adjudged, ordered, and decreed that said several tracts of 2738, 5000, 9330, 5938, and 500 acres of land have been redeemed, and that they be and stand released from said forfeiture and exonerated and released from all other former taxes and damages, if any such there be,
and no sale thereof shall be made on account thereof, and said several tracts of land are hereby reinstated and directed to be entered and charged on the land books of said county of Webster, commencing with the year 1881, in the names of the heirs at law of said Allen T. Caperton, deceased."
In the circuit court of Nicholas County there were similar proceedings in 1881 for the redemption from forfeiture and sale for non-payment of taxes of the tract of 41,171 1/2 acres and other tracts standing in the name of Caperton. The back taxes, with interest, charged and chargeable upon those lands, were adjudged to be $3100.87. That amount was paid by the heirs of Caperton, and it was adjudged that these tracts "be and are released from such forfeiture and exonerated and released from all other former taxes and damages, if any such there be, and no sale thereof shall be made on account thereof, and the said several tracts of land are each hereby reinstated in all respects as if no such forfeiture had occurred, and the assessor of Nicholas County is ordered and directed to enter said lands in separate tracts on the land books for said county for the year 1881 in the name of Allen T. Caperton's estate and charge the same with taxes commencing with the year 1881, all prior taxes, including the year 1880, having been paid as aforesaid."
The court below, in the present case, after observing that Caperton's title was regularly deducible from the Commonwealth of Virginia, and that all the lands in controversy were duly entered in his name on the land books of the proper counties, and that the taxes charged thereon were all paid by him up to and including the year 1873, thus correctly summarized the plaintiffs' proofs as to possession: "As to the possession of these lands by said Caperton, the evidence shows that as early as the month of April, 1865, one Solomon Taylor was in the actual possession and occupation of a part of the lands then owned by Caperton, as his tenant, and claiming his possession and occupation thereof as the tenant of Caperton. The lands so possessed and occupied by him were a part of the said Robert Morris tract purchased by Caperton, as above referred to. His improvements thereon consisted of a
log cabin, in which he lived, and a few acres of land enclosed, cleared, and cultivated by him, and had the appearance of being old. He remained on this land as tenant of Caperton until the year 1869, when he purchased from Caperton some 300 acres of the land formerly belonging to Morris, which embraced his said improvements. About the same time, in the spring of 1865, when Taylor was found in possession of said land, a man by the name of Thompson was on the lands acting as the agent of Caperton, locating and surveying them, and exercising supervision over them. In the spring of 1868 Caperton put Samuel Hinkle on that part of his said lands which were formerly a part of the Robert Morris tract, as his tenant and agent, and gave him the general charge of the whole of the lands then owned by him as above stated, with instructions to protect the timber thereon from waste and destruction, and to prevent squatters from settling upon them. Hinkle remained there as such tenant and agent of Caperton until the month of June, 1876, when Caperton died, and from that time to the institution of this suit he remained on said lands as the tenant of the plaintiffs. On the 8th day of July, 1874, George M. Sawyer, as the agent of Caperton, leased a portion of the land in controversy, lying on Williams River, to Mark Hammons, being the place where a man by the name of Mullen had once lived as a squatter, who took possession of the land under his lease, living there until he assigned it to M. J. Stiltner on the 14th day of May, 1875, and on the 21st of September, 1876, Stiltner assigned one-half of his leased premises to R. C. Clevenger, who entered upon the land, holding possession of the same until the spring of 1877, when he and Stiltner sold their tenancy to Peter Hammons, who took possession of the premises under them. The leased premises were after wards occupied by Jesse Hammons, who derived his right from Peter Hammons, and he sold his right to John Lee, who entered upon the leased premises. All of these persons in law were the tenants of the plaintiffs, and of those under whom they claimed. It will be perceived that the constructive possession of the lands in controversy, under the proofs in this cause, in the absence of an actual, adverse possession,
which does not appear, was with the said Caperton up to the time that Taylor became his tenant of the lands mentioned above, and that the said Caperton had the actual possession of all of his said lands, at least from the month of April, 1865, to the time of his death, unless that possession was disturbed by the operations of the defendant, Rich, which commenced on the 10th day of May, 1872, by his lease to Mullens." Braxton v. Rich, 47 Fed. Rep. 178.
In considering the question of the possession of the various tracts of land claimed by the plaintiffs, as heirs at law of Caperton, the court below proceeded upon the ground that the surveys being coterminous all the tracts should be regarded as one tract. "Upon the question of adversary possession," the Supreme Court of Appeals of Virginia said in Overton's Heirs v. Davisson, 1 Gratt. 211, 224, "it is immaterial whether the land in controversy be embraced by one, or several coterminous grants of the older patentee; or one or several coterminous grants of the younger patentee: in either case, the lands granted to the same person by several patents, must be regarded as forming one entire tract." The same principle was announced in Ewing v. Burnet, 11 Pet. 41, 53, and in Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 443.
This is substantially the case made by the plaintiffs. It would seem to be sufficient to sustain their claim to ownership of these lands, unless it has been overthrown by the evidence adduced by the defendants.
We proceed to examine the case made by the defendants, and the grounds upon which they assail the title of the plaintiffs. Certain tax deeds, under which the defendants claim, embrace the lands in dispute. The circumstances under which they were executed will now be stated.
John B. Shreve, a surveyor by occupation, had in his possession that he claimed was the original record of numerous surveys of lands in Randolph County, Virginia, made prior to the beginning of the present century. These lands were afterwards embraced in the present counties of Nicholas and Webster, West Virginia. He was well acquainted with the lines and corners of these old, and, as the evidence clearly
establishes, long abandoned surveys. He was probably the only person, living at the time of the transactions to be presently referred to, who could identify those corners and surveys. He conceived the idea of having the lands supposed to be within those abandoned surveys put on the assessor's book and sold for non-payment of taxes -- the lands to be purchased by those who should employ him to identify and mark the lines of the original surveys.
In execution of this plan, but without any authority whatever in the premises from any one interested in the lands, Shreve, in 1868, addressed to the assessor of Webster County, West Virginia, a communication describing various tracts of land, aggregating nearly 700,000 acres, and directing him to put them all on the ...