838

rEDER;&L' REPORTER,

vol 52.

a<l vertieement Of three monthsltnd sale at auction 0f railroad' frllnchises, the sale shotile;t.be for that which would' le81Jt restrict UN as well as the. amount of ,the Qid;and theretore meant that be for money; and that the we .of the entire franchise to the defendant having been for gravel pavement, and not for money;.." ·invalid. ' 4; ,There isaremaining point to be considered, as to whether there has been such acquiescence in the grant to the defendant on the part of the complainants, and such a sleeping upon their rights, that they ought to be considered as having in equity no right to urge the objections to the defendant's grant. , ThefinaI ordinance-that which related to Coliseum street-was passed August 2, 1892, and the grant to the defendar;lt: this ordinance was made on September 9, 1892. The original bill in the state court was filed October 17, 1892. This makes the interval between the passing of the ordinance and. the filing of the bill tWO>months and a half, and the interval between the date of the grant and .the filing of. the bill one month and eight days. I do not think that this delay, under the cireumstances as they appear by the bill and affidavits,should be deemed such an acquiescence as would in courtBprecludetbe complainants from asserting whatever rights they may have. The conclusion which I have reached is that upon the second and third grounds mentioned above..the injunction should issue.

No.1.

L IllnCTP:N1-BTJDDOII-OonoJ' UNlUIOOBIIIID LosT DJDID. Plaintflfain'ej8Otm81lt, miller a deed ldven by the heirs of F. 1111888, claimed a one-third interest in a boundary of lana. in Virginia patented to F., J., and T. In 1798., claimed, tl1at F. intereat to T. in 1796; that the whole traet O.ln 1884, for delinquent tIloxeB against To'B heirs, and deeded to O.. bY,.!."the::&rk Of. the con.n,t.' . court in 1836.'; ,and that 0., his heirs, and biB and t.heir 011«_, .\lQntinued In possAssion ever Bince. Defendant Bhowed tbaUhe 'from F. to T. waB lost; that after T.'B death it had been proven in a eountq in Tenl1eSBee and recorded there in 1816; tbat a certified copy waa recorded . a .county in Vi:rgil)ia where a part of the land cpnveyed, no part of that 'fricontroversy, was situated ; and' offered in evidence a copy of the latter record.. HeW. that such copy was properly admitted as Becondary evidence In oonnectil>11 "fith other evidence tending to show an abandonment of F.'B titJ,e by biB heirs, the jury being cautioned that it could not' be conBidered &B construotive n0tice to ODe purchasing in good faith for value. . ... TAJUTIOll-Fqllli'EITURES-VIBGINIJ, ST.A.TVTlIlIl. Act Va.)iarch 19, providing for the release of forfeitures of land for payment of tUes, appliedoIllyto the years prior thereto,. and did not atrect tll-e BaleB directed by Ule act of March 10, 1882,.for failure to pay taJ:811 thereafter accrUing.

e.

SAlIB.

.

i

Act Va. Feb. 117, 1885, I 9, reqniring ownen of landB granted by the Btate, anel Ilever entered On Ule boob ot the oommissioller of reVenue of Ule proper COUI1Q',

VAN GUNl>EN ,.

VJRGINIA COAL .4: IRON CO.

839

to have them so entered and cha,rged with all taxes and damages il1 arrear, and pay the same, unless they were such as would bave heen relinquished by the act of 1882, and pfbviding for the forfeiture thereof. upon default, until after July, 1886, did not apply to lands wbich bad been longlln the commi88ioner's books, and wbicb bad been sold for the taxes of 1834, and not redeemed.
'- BAlIla-STATB· DECISIONS.

The decisions of the state supreme court relative to the acts of the Virginia legislature relating to the forfeitUre of lands for nonpayment of taxes are controlling in the circuitcout1'.of appeals. Plaintiff'li requests to charge tbat the purchaser at the tax sale took T.'. onethird interest only, and thereby became a cotenant wJ\h F. and J., and could DO' bold against· tbem by adverse possession, were modified by tbe court 80 as to make tbe proposition applicable only in case the jury found that F.'s interest. in the land bad not been forfeited to the comm()nwealth or sold to T.

5.TRI.u--MoDI_ICATION OriNST1'lUCTIONS.

6. BAME.

It was not error for the court to lItrike from an instruction the words, "and all the . other facts and circ,umstances of tbe case." wben all the facts and citcumstanoea bearing on the question covered by the instruction were in it. The fact that lands at the time of their sale are in the open and notorious possession of others than; the vendor, and that the deed from the vendor purports to convey only the ).and of which the vendor's ancestor died possessed in certain counties, without further description, is suflicient to put the vendee on inquiry, and prevent. his protecting himself as an innocent purchaser for valUe without notice. The land .was listed for taxation in the names of T.'s heirs alone, and was sold for taxes in their name in 1884, and was conveyed to tbe purchaser by deed, describing it by metes and bounds. HeZa. that the deed gave the purcbaser.color of title to all the land described in it, so that the purchaser's claim of title to and entry upon aU tbe' land, and bis uninterrupted possession witb payment of taXes for tbe time prescribed· by. law, ousted F.'s heirs as tenants in common, and made bisP08session adverse to such heirs from the time of entry.

7.

VENDqR A,ND ¥ENDEB-,BONA FIDE PURCHASERS-NOTICE.

8.

ADVIIBSEPOSSBS8ION-COLOR OF TITLE.

9. BoUNDARIES-ADVERSE POSSESSION.

. Where a·person enters upon land under a deed purporting to convey a certain boundary, and actually occupies a portion of the tract, the law extends his adverse possession to the boundaries. without his fencing or cultivating the whole. cotenant, where the hostile character of the possession is so openly manifested tbal a man of reasonable diligence would discover it. pressing bis opinion on the facts. when the law is correctly stated, and of fact are submitted to the final determination of the jury.

10. ADVERSE POSSESSION-BETWEEN CoTENANTS. A teIiantin common will be deemed to bave notice of the adverse holding by bis 11. TRIAu-INSTRUCTIONs-PROVINCE OF COURT. A judge of a United States court does not'invade the province of the jury by ex-

au matters

12.

SAlIlE-STATUTES.

An instruction in strict accordance with the statutes of tbe state, relating to tbe length of time necessary to bar a right of entryJ is proper in an action in ejectment, when there is no evidence before the jury renaering it inapplicable.

In Error to the Circuit Court of the United States for the Western District of Virginia. Action ofejectment by Christian Van Gunden and others against the Virginia Coal & Iron Company. For opinion delivered on a motion for a rule for security of costs, see 47 Fed. Rep. 264. Verdict and judgment for defendant. Plaintiffs bring error. Affirmed. F. S. Blair, and J. J. A. PoweU, for plaintiffs in D. H. error· . ichard O. Dale and J. F. Bullitt, for defendant in error. R Before BoND·and GOFF, Circuit Judges, and MORBIB, District Judge.

340:

<,',

;:.,I'EDELt;AL

vol-52.

said

:'GoFF,Circuit This action brlmghtbythE' i>!itintiffs in error against dMimdant. in error in'$e circuit court of the United weEitern distri9tofVirgipiatll,eld at Abingdp*." It was tried at the fall term, 1891'; the' jury finding a verdict for defimdant, upon which the court entered judgment. ,The case.is now before thiscburt on writ of error bbtained by the plail'ltiffs, the assignments of error in the petition being 35 in number, of wl)ich 21, those from 2 to inclusive, and 21, 27, 32,33,,34, and 35 are not referred to in the filed by counsel fbr in error, and, will be treated by the court as abandoned. In fact,cQuhsel 'in argument, of the case conceded that they were not relied upon. RUle 24 of this court provides that "thy brier shall contain aspeciflyation of the errors relied upon which, in cases brought up by writ ofertor, shall set out separately and particularly each error asserted and intended to be urged." Most of the remainingerrors ,assigned ignore the the court applioable thereto. As this is a matter of great importllnce,we call attention to it now. The ruletI:lCJl:/.iresthaf'tbe. specification shall quote the full substance of the evidence admitted or rejected, when the error alleged is to the admission or to the rejection of evidence. This provision of that tole hl!.s been, ignote<iby plaintiff in, error, and the requirements of rule 11 have not been observed in the preparation of the petition for a writ qferror in this case. Theobject'dt,ithe rules is,'to so present the matter raised by the assignment of error, that this court may understand what the question is it is called upon tbdecide without going beyond the asitself, and that the party excepting may be confined to the taken at the time, which must then have been stated specifically. Hinde v. Longworth, 1'1 Whea;t. 199; Camden v. DoremU8, 3 apw,.515j.Burton V" Drigg8, ,.20'Wall. 125. The rule is now well established that only those matters' can be assigned for error that were brought to the attention of the 'court below during the progress of the passed upon directly ofindirectly. Sprimger v. U. S., 102 U. 8.<586; Wood v. Weimar,104 U. 8.786. The assignments atid the bills of exceptions are not in accordance with the rule of praGtice, requiring that they shall show that there was evi.dence applicable to the instruction' given or refused. The exceptibns to the giving of the iristructions asked for by defendant are so general as to render them obnoxious to the rules regulating the same. Insurance Co. \!; Raddin, 120 U. Si 188,7 Sup. Ct. Rep. 500; Mining Co. v. FraBeT, 130 U. 8.611, 9 Sup. Ct. Rep. 665; Block v. Darling, 140U. 234, HrSup.Ct. In,this 1Ilst-mentionedollseMr;Justice HARLA"

a

",

"The general excep,tiQn.to all.and of· the foregoing charge and illstructionssuggestS}lQthingfor our, It was no more, than a general exception ''to the whole charge. The court be)owwRs entitled to a distinct specification ot the.matter, whether of fact or of law, to which objection was made.:' Th6 icharge covered 'all the facts arising out ofthecouIiterclaim., and' 0Iea1')Y stated the law,wQich, in the opinion of the court,' governed

VAN

V. VIRGINIA COAL

&;

IRON CO.

841

the ease. If its attention had beenspeciftcally called at the time to any parerroneous, the necessary correcticular part of the charge that was tion could have been made. An exception ·to all and each part' of the charge gave no information whatever as to what was in the mind of the excepting party. and therefore gave no opportunity to the trial court to correct any error committed by it. Ha1'vey v. Tyler, 2 Wall. 328,331:1; Beckwith v. Sup. Ct. Rep. 466."

Bean. 98 U. S. 266,284; Moulor v. American Ins. Co·· 111 U. S. 335.337,4

In Deitsch v. Wiggim, 15 Wall. 539, Mr. Justice STRONG said: "Most of the assignments of error have been made in total disregard of the twenty-first rule of this court. That rule is necessary to the disposition of the business which presses upon us, and it is our intention hereafter to enforce strict compliance with its demands. If errors are not assigned in the manner reqUired, the assignments will be treated as if not made at all, and we feel justified in passing without notice the greater number of those which are alleged to appear in thili record." The record in this case, and the brief of counsel for plaintiffs in error, were filed so soon after the organization I)f and the adoption of rules by this court that it is doubtful if the attention of counsel had been called to the requirements of the regulations alluded to. For this reason it is not the intention of the court to disregard the assignments of error relied on in this case, but they will be considered in connection with the assistance afforded by the oral arguments, and the aid derived from an spection of the record. It is hoped that this reference to the necessity for a strict adherence to the mode of procedure prescribed by the rules is all that will be required to secure in the future the full co-operation of counsel in their enforcement, as it will be our duty hereafter to require due observance of their requirements. It is proper to say in this connection that they have been departed from in the preparation of a number of cases heretofore submitted to this court. The declaration filed in this case contains two counts. Plaintiffs in the first seek to recover an undivided one-third interest in a tract of 62,000 acres of land, situated in Wise county, Va. Under the second count, they seek to recover an undivided one-third interest in a tmct of about 48,000 acres of land, part of the tract first mentioned. Defendant pleaded not guilty. What is the case as it appears from the record? The state of Virginia by patent dated January 30, 1796, granted to Nathan Fields, John Johnston, and Nathaniel Taylor a certain of land in that state, in Lee county, containing 62,000 acres. Since then the county of Wise has been created, and includes within its boundaries the former territory of Lee county, embracing the land so granted. The plaintiffs claim that on the 30th day of April, 1888, they purchased the interest of the heirs of .Nathan Fields in the land mentioned, and that by deed of that date they became tenants in common with the vendees of' the other patentees of said land and those claiming under them; that the defendant is in possession of a great part of the land, claiming the fee-simple title thereto; and that they, the plaintiffs,

842

FEPEBAL, RlCPORTER.

vol. 52.

.

to recover aODe-tlnrd:interest thereof, being innocent purof the same for the heirs of NathilnFields i who died'ih1820. . ', ,. clpims that have hot shown Qyproper evidence tba.Ubf>ir grantors are .the Nathan Fields, the prlttentee, who, defenartntinsists, sold and conveyed his interest in the land to his eopatentee, Nathaniel Taylor, by deed dated January 1, 1796. Defendant also claims that the title to the entire tract of land was, under the provisions dfcertain acts of the legi'slature of Virginia, forfeited to the" LiterAry. fund" of that state in 1816, and that, copsequently, the plaintiffs took no title with the.deed to them in 1888, and cannot recover in this action;IDso that oneJ. O·. Olinger,under whom defendant claims, beettrneth'e'owner of 48j200acres of the 62,000-acre boundary, by a purehas,eara,tax sale made by the sheriff of Lee county in 1834, by virtue of the provisions of an act of the legislature of Virginia passed Ma.rch 10, 1832, the land having been conveyed to him by Alexander W. Mills, clerk of the county court of that county, by deed dated: December 7, 1836., Defendant also insists that, ifthe deed made by,Mills to Olinger did not pass to him an absolute title to the entire tract 9f48,200 acres, of the land having been made for dl)linquency in the name of"Taylor's heirs,-still, as by the deed the entire tract of land wac conveyed by metes and bounds, the same Was color ortiUe thereto; and as:Olingerentered into the possession of the land immediately, claiming title· to the whole, and exercised acts of ownership over it until his death in 1863" and that as his heirs. and his and their vendeea, have cantinuedsuch.possession and such acts of· ownership from ,the death of Olinger dawn to the institution of this suit,-a period in all of over 50 years,'"'""':'the plaintiffs, and those under whom they claim, not having been in the actual possession of any part of the land during said time, land by adverse defendant has acquired a good and perfect title to possession. The first assignment of error reads as follows:
.1 " ' , '

"That the court should not have admitted to the jury as eVidence the copy of a copy of an alleged deed from Nathan FieldS to Nathaniel Taylor, dated January 1, 1796, and registered in Carter county, Tenn., in the year llH6, and which said copy had not been recorded in Lee county, Va., where the land in contrpversy was originally located. nor in the county of Wise. whicr. has since been formed and wllere the land now lies; because the said deed not having admitted to record in said Lee or Wise countieil. according to law. such deed could not he read in evidence as a recorded deed in Virginia, and liS between the parties to said suit was void. The deed aforesaid was not properly recorded in Virginia. for the reason that. in order to its proper admission to record here, it Was necessar.vat that time thl\.t,it should have been either acknowledged by the grantor before the, court. provt>n before the clerk by three witnesses, 01' acknowledged before two justices; ",hereas said deed was not proved byany witriesses. but the delivery attested by two witnesses in Carter county. Tenn;,'artdthe handwl'iting proved by a third. Upon this proof alone was the: deed :registerell in Carter county, Tenn., wherein none of the land was situated,. and, upon tile Qertiticate of the clerk of Carter .county,

VAN GUNDEN· ". VIRGINIA ··COAL &: IRON CO.

843

Tenn., admitted to record in the will book of Scott county. Va., where none of the land ,in controversy was situated" contrary to the statutes then in force. 1 Rev.OodeVa. 1819. c. 99, §§ 2-7."

The Gourt, b,elow, when the deed allude<1 to in this assignment of error was admitted, in evidence, stated that it was not to be considered as notice to purchasers for value, and that it was admitted as secondary evidence only. Had the full substance of the evidence bearing on the questions raised by the offering of the deed been quoted in the specification of error as required by the rule, it would have shown, as we find from the record, that defendant laid the foundation for introducing secondary evidence by the testimony of a number of to the effect that diligent search had been made for the original of the deed, in all places where it was likely to be found, without success; that Nathaniel Taylor's papers, he being the grantee in the deed, were destroyed in 1846, by fire, the presumption being that the original deed was burned at that time; that Taylor's executors, in 1826, by deed which was admitted in evidence, sold and conveyed to John Crabtree 12,800 acres of the 62,000-acre tract, the same being sold as the land of said decedent, and that Crabtree and his vendees have been in undisputed possession thereof ever sinea, thehflirs of Fields never having made claim to any part of, the land sold Crabtree; that Nathaniel Taylor died in Carter count)', Tenn., in 1816, in which county and year his will was admitted to record, audat the same time the deed from Fields to Taylor was proven and registered; that by the will the executors were authorized to sellas much of the" back lands" as would be sufficient to pay Taylor's debts; that while the land in controversy was not in Scott county, Va., where the copy of the deed was recorded, that part of the land conveyed to Taylor by Fields in the deed mentioned was located in that county; that the will book alluded to in the bill of exceptions was a book used by the clerk for general purposes, such as recording deeds, wills, powers of attorney, settlements, and like papers, the office then not being very well provided with record books. , Under these circumstances, was it proper to permit the copy of the' deed from the records of Scott county, Va., to be read in evidence? The deed had been proven in Carter county, Tenn., and duly recorded there, and a certified copy of it recorded in Scott county, where a great portion of the land mentioned in it was situafed. Defendant did not claim that the deed was constructive notice as against a purchaser for valuable consideration without notice, as it was not recorded in the proper county nor within the time required, in order to have that effect. The plaintiff's contention is, in effect, that a copy of the deed cannot be used as evidence for any purpose, because it was not acknowledged or proven and recorded in the manner required by law, in order to make it constructive notice to third persons. The deed was proven three quarters of a century before this trial, in a court of competent llnd extf'nsive jurisdiction, and the presumption of law is that its acts were regular. The certificate, duly attested under the seal of the court, reads as follows:

844'

I'EDERAL REPORTER; voL 52·

.. MA.Y SESSION, 1816. courL and admitted to record. Let it be· registered·. Given under my hand and the seal of my office this fifteenth day of May, 1816. . "GEORGE WILLIAMS, Clerk. "Stateo/Tennessee, (Ja1'ter Oounty. The within deed of conveyance, with its Was dUly registered in the register's office of said county this fifteenth day of May, 1816. GODFRJl:Y CARRIGER, Reg. "By His Deputy, WM. R. WA.TSON. " A true copy. Teste: "BENJ. BROWN, Deputy J'tegister tor Carter County, E:T. "Nov. 11th, 1822. "State of Tennessee, Oarter (Jaunty. I, John Williams, chairman of the court. of common pleas," etc., "for Carter county, do hereby certify that George Williams, who signed the above certificate.as clerk, was then, and still is.. the clerk of. the COU1't of pleas," etc., "for Carver county, and that that full faith and is due his as such. . "Given undertny band and seal this 11th day of November, 1822·.. , . "JOHN WIr,LIAMS. "ELIZABETH, Nov. 11, 1822. We, John WIlliams, William Carter, of the.. peace for Carter county, do hereby certify that two of the Godfrey Carriger, ",hose name appears as register of Carter county to the annexed copy of a deed of cOllveyancefrom Fields to Nathaniel Taylor, was at that time, and for a great many years before had been, and still is, register for Carter county; and that William R. Watson, who signed his name as. deputy register to said certillcate of registration, was at that time depntyregister of Carter county; and that Benjamin Brown, who attests the annexed copy as deputy register, was, at the time of said attestation, and is, dflputy register for Carter county; and that full faith and credit is due all their acts as such. "Given under out hands and seals the day above written. "JOHN WILLIAMS. [Seal.] "W. CARTER. . [SeaL] "Sta·te of Tennessee, Oat'ter (Jaunty. I, George Williams, clerk of the court of pleas, "etc., "for Carter county., do hereby certify that John Williams and William Carter, who have made the above certificate, was at that time justices of the peace for Carver county, and that full faith and credit is due all their acts as such.' '. · "Given under my hand and seal this 11th dayof November, 1822. "GEORGE WILLIAMS, Clerk· .. Virginia. At a court of quarterly session continued and held for Scott county the 13th day of March, 1823. This power of attorney from Nathan Fields to Nathaniel Taylor, certified to have been proven in the court of pleas and quarterly seesion held in and for Carter county, in the state of Tennessee, Is thereupon ordered to be recorded. '. ·".re8te: JOHN S. MARTIN, D. C. "Virginia, Scott (Jounty-To toit: I, C. M. Carter, clerk of the county conrt of Scott county, do certify that the foreKoing is a true copy of deed from Nathan Fields to Nathaniel Taylor, as the same is recorded in myoltice. "Given under my hand this 13th day of October, 1891. "C. M. CARTER, Clerk Scott County Court."

"State o/Tennessee, (Jarter (Jountll. The within deedwaa proven in open

"State of Tennes8ee, (Jarter (Jounty.

VAN GUNDEN' fl.

&: maN

co.

845

The act of the Virginia assembly regulating the proving and recordpaB$ed in 1792, did not reqUire that they should be ing of proven in the courts of Virginia, but permitted it to be done "before any court of law;" and, when so proven and properly certified, they could be recorded in the county where the land was situated in Virginia, if presented for that purpose within a certain time. This deed, though proven, as the record shows, was not presented for record within the time allowed, nor in the proper county, and consequently cannot be used as evidence tending to l)rove constructive notice to third persons. It was not admitted in evidence for that purpose, nor as a copy of a recorded deed, in the sense such copies are generally used. Where a deed has been lost or destroyed, its contents may be proven by witnesses, and a be used assecondlity evidence, even in the absence of certificates showing the proper the original. The deed from Fields to Taylor was proven and recorded in 1816. and it is shown that, whether authorized by law arnot, a duly-certified copy was admitted to record in Scott county, Va., in 1823. During the trial of. this action in ejectment,in 181H,the originl11deed, an ancient document, was shown to ha\'e been lost;' and a copy of the record, so. madEr in, 1816 and 1823; was offered in evidence, in connection with other testimony , including a certified copy of the deed and certificates from' Carter couuty, Tenn., and all the othei' testimony before mentioned, tending to show the loss of the original deed, as an item of proof to be considered for what it waS worth. This was proper, under the circumstances of this case, as then shown by the testimony, es})ecially in connection with the questions raised by defendant's tenth instruction, the giving of which by the court to the jury is assigned as error in the thirtieth specification, yet to be referred to. If there was testimony before the jury from which it could presume an abandonment of the' Fields title by his heirs, and if that testimony was such as to justify the presumption that a deed had been made conveying the land to Taylor, then surely it was proper for this copy to go to the jury to sustain that presulU ption by showing that such an original deed had been recorded in' Carter county, Tenn., in 1816, where Taylor and also in Scott county, Va., in 1823, where much of the land conveyed was located. The court did not decide as to the weight this testimony tending to show the existence of such a lost deed was to have; that was left to the jury. 'fhe admission or rejection of such evidence is to be determined by common-law principles, and the general rules of evidence applicable in such cases, and not by the provisions of legislative enactments intended to regulate the acknowledgment and recording of deeds. Ben v. Peete, 2 Rand. (Va.) 543; Rowletts v. Daniel, 4 Munf. 473; Lee v. Tapscott, 2 Wash. (Va.) 276; Baker v. Preston, Gilmer, 284; French v. Loyal Co.· 5 Leigh 680; Archer v. Saddler,2 Hen. & M. 376; Applegate v. Mining Co., 117 U. S. 'lo5, 6 Sup. Ct. Rep. 742; Stebbin8 v. Duncan. 108 U. S. 32, 2 Sup. Ct. Rep. 313; Fletcher v.Fuller, 120 U. 8.534, 7 Sup. Ct. Rep. 667. .

848
upon is NO;,17: 't\)the 'jrtfy 'the fourthfnstruction irSkl!fd!t'o.,:'tiytM philhtiffs,''\Vhiclri\! in' the-w6rdsafid figures following. to wit: 'The Clc)tttt;inlltru,cts the Ljury ,thltt, althongh they llluybelieve from the evi· denc.e,;thatethe land patented to: the-said, Fields, 'faylor, and Johnson. or any pllr,t l!mbraced ;sllit, .WI\S forfeited to, the literary fund of Vir., bf,the nonpaymen.t o,f the taxes for the 1834. under the act of 1831, the ,sold for taxes for the year' 18$4 !'ta sale made on the 21st October, 1834;31).d that a deM was made by'tftifClerk of nee countY,'Va.,tosa:id J. C. Olinger for said land in Decembet; yet the court 'further tnlltructs that if they shall believe fl'oll) ,the eVidence that the said land was sold .for an assessment of tax not to Wit" fQr $4.92, and, if tht1Y believe tba,t. h,c;l t1}e .1st. April, 1831, and that the wRsplaced ouontinued on. the commiSSioner's books on or before 1838, then all said lands,.so returned delinquent for and before lsb1ut,., ISM; was releilsed from all tax' ilnd dalliaKes that did 'not exceed $20 by,aoac'ofthegenetalassembly of Virginia of March 19,1832, and 'and of February,27, 18S5,and $iJid;sale and said deed toOlingEjr title to him to The 'tax was remjtted:bY; /:lwd acts, and the said ;INe1d,by sai!!, sale deed;, was not divested of.his title to the .' , , .' . said lilnd;or any partthEireo'f.'"

-bl'he"rnilm assignment'

'lb.

;

;.

.

,:

.' , .

',.

;.j

"

·

We can,l1ot find in the. record that there was any evidence -offered tend-

ing to llIhow that the land "was forfeited to the literary fund of Virginia forthe ndnpa.yn!lentof taxes for the year .1834,. under the act ,oithe Virginia8ssemblyof 1831·." The evidence offered by defendant on that questiCil1lljtendedtoshow'forfeiture for the nonpayment of taxes for years prior to 1:881, and thatthe land was sold for the failure to pay the taxes for the JyearJ834. The remaining part of the instruction asked for was liot 'warranted· by the testimony"and B6ems to be based npon a misconception of the apt's of the legislature of Virginia of March 19, 1832, and ,TJnereleaseofthe forfeiture fOf the, nonpayment of taxes, provided forin the second section of the act M March 19, 1832, applied only to the years to' 1832, and did not affect the sales directed' by the act of Match" 10f 1832', for failure to pay taxes thereafter accruing. The. actoLFebruary 27;,1835,. by its first section extended the time until July:1, 1836, for the redemption. ofall,lalld and lots "heretofore" returned delinquent for the nonpayment of taxes, and provided how theredemption might beeffected. The second section of that act referred to the fact :that many large tracts of land lying west of the Alleghany mountains,'giat;lted by the eommonwealth before the 1st day of April, 1831, were net lilien, and had'Dot been for many years, entered 9U: the booldsof the commissioner of.tbe revenue where they respectively were, situated,. by, reason .whereof no forfeiture for, ,tbe nonpayment of or could occur, under then existing laws; and then ptdvjdedtbattheowner,of such lalid should, on ot before ,the lstday of July,1836(enter orCliuse them to, be entered on the books of the oUhe revenue of' the .countywberelluch' iand w.as located, and have them charged with all the taxes and damages in arrear, and

VAN GUNDEN

I).

,VIRGINIA. !OOAI.. 'IlImON CO.

847

pllY

they were such asw6uld have,b,een relinquished '.exonerated' by the secOnd section of the act cOncerning delinquent and forfeited lands, passed March 10, 1832j and t,henproceeded to the forfeiture of such lst<4y of July, 183{), should the owners thereof have failed so to enter them, and to have paid the taxes so due thereon. The evidence· before the jury was uncontroverted that the land in dispute had been upon the land books for many years prior to the passage of the act of February 27, 1835, and that it hadl;>een returned as. delinquent for a number of such years. The fact that, the. land was on the commissioner's books after it was sold in the year 18a4, and before the let day of July, 1836, and that it had been returned ,delinquent before the last-mentioned date, the taxes not exceedingthe sum or $20, did not make applicable ttl the same the provisiool!lreleasingthe taxes due, contained in the acts Of March 19,1832, 21, 1835. The nrst of said mentioned acts provided for th.e release of the forfeiture for the of taxes for the years prior .,to .1832, and. did not affect. the taxes thereafter accruing. The act of February ,27, 1835 j did not apply to the case as ptesented to the jury, as the land was not redeemed, and the provisions relative to entering it on the books oithe commissioner of the revenue were not applicable to the land in question, and, as a matter of fact,it had been sold before that act passed. The instruction, as asked for,was uncertain and ,misleading", mingHng together the provisions of the acts of the Virginia .in it,under a misconception of their meaning and intent, and we think the. court did right in refusing to give it to the jury, ASllignment of error No. 18 reads as follows: ,'!The court erred in modif)'ing the plaintiff's instruction Dumber two, said instruction as tendered to the court being in the words and figures following, tQ wit: ·The court. furtber instructs the jury that. if they shall believe from the evidence that by said patent the said Fields and Taylor and Johnson became seised of the land In controversy, or any part thereof, as set forth in instruetion No.1, and that the said land, or any part thereof, was sold under the delinquent tax law of the state of Virginia for the year 1834; that said aale took place on the 24th October, 1834; that at said sale John C. Olinger becallle.the purchaser, and the clerk of Lee county, in 1836, made a deed to the said Olinger for same; that the land advertised for sale was sold as and for the land of the said Taylor's heirs alone, and for the said Taylor's heirs' delinquencyalone,-then the court instructs the jury that the said tax sale was only a sale of the said 'raylor's one-third interest; that the said Olinger thus became a tenant in common with Fields and Johnson, the other two patentees.' But the court, instead of giVing said instruction as tendered, added the words, · and that said land had not been forfeited to the common· wealth, nor the interest of Fields therein sold to Taylor,' after the words' No. I,' and gave said instruction as thus modified." Allsigument No. 19 is similar in character, and may, with propriety, be considered with the one just read. It is as follows: court erred in modifying the plaintiffs' instruction number three, said instruction as tendered to the court being in the wOl'ds and ligures follow ing,

848
ins,truots tl;le jury that if they shaU 1:>elleve from !'lllnCAtl1lJ,ttbe s111d became purchaser of the said 'Taylor interest sidt:1, and ,1& deed from the clerk him all of the cqrltrovrrsy, yet OlingE'rbeing a tenant In common with the sll:tdFieTds and'Jorrnson; if the said Olinger' took possession of said land, or anypal.'t,theteof, such possession was thlfjoint possession of himself and his coteWlQ's. as ,the mere, postlession of one tenant in oommon wHinot betaken to the title apd said Olinger, or unt;ler him, w0111d rely upon /til adver&arr ,possession, ,they must Dot, on),;show an entry,bilt they must ail actual of their coterJants, thesa'WFields and' or such other notorious act or acts amounting to R tbta'!'deniil) of the rights of said cotenants, and must prove that said CO" tenainlJs'hhd kno'wledge and nbtiee,of this 'aavers9 claim of exclusive OW'11ersbip:on jJlepart of the· saidQlinger"or.those 'claiming undE'r him·; and such adversepQssessiqD of j musth,ave been actually, by Sll,id, tl1O!lecla1ming u,n4e1' him,qnder and ,!luch Cil'CUrnstllIlces, under color of title the' length. of time 11y law, beforesRflfpossessiolnvill ripen into ,Ii good lind sUfficient title toenable the defendants til their suft to defeat pl1\intiffs' right to recover;' But the oou'rt,lnsteadofgiving said instruction as tendered, inserted the words, ·and that Fielda', int@rest in:eaiq been forfeited:to the common· .nor, sold, to Taylpr,'!\fter the 'Vpr!ls · tax sale,' inthethird line of 8/,Lid instrllctlo11', i'\Ild gaye,8a,id iU/iltruct,ioqas thus < Plaintiffs that the insl:'rtion by the court;·ofthe words iridicated!, in ·theinstru6tions raised questioner whioh were foreign to the:' propositions of.Iaw intended to De propounded by them , confusing in· their tendencies,and that it was error so to modify the instructions. ,that the changes made by the court produce the result claimed, and we do not think that the instructions as given are subject to the criticism made. -The instructions as tendered 'evident}y,did not fairly present the law applicable to the case as it was presented to the jury by the testimony before it. They would have tended tOdonftise the'Olinds Of ,the jUfd1'S had they"' wfthout the made by the cotitt., matter of the forfeiture of the title tP. as well as that relating to the alleged sale of ,}fields' interest. to Taylor, were properly called to the attention and submitted to the determination of the jury, in connection with the question of cotenancy . Ifthe title to the land had 'been vested in the" Literary 'Fund" by forfeiture,thenOlinger, byhispurchase,'under the act of if made thereunder, acquired the entire tract ofland, subject to the Pflyment ofj;axeEl in arrear. If Fields had sold his interest in the land to Taylor in 1796, as claime(l: by the defendant, and the tax sale was for the delinquency of Tay1or's heirs, then (il').dependently. of the qtiestion of forfeiture) Olinger, by virtue of his purchnse, secured the interest of Fields. as 'well as. The twentieth as.signment is as follows: "The court erred in modifying the plaintiffs' instruction number five,'said instruction, as tendered to the court, being in the words and figures follow'iog, to wit: · The Court instructs the jury that the forfeitnre of the 'land in eontroverBy to the commonwealth of Virginia is a question for the jury to

VAN GUNDEN 11· ..vIRGINIA COAL & IRON CO.

849'

determine; ,3nd, in I1triving at their determination. they will take into co,,sideratic:>n .the cel:tificate!!! of the auditor of public account!!! along with the certified extrac.t!!! from the land books from the county of Lee. and the certified record from the circuit superior court of law and chancery for the county of Lee. and all the other facts and m1'Cufflstances of the case; and they will determine. in the first place, whether the said lands. to the extent of said Fields' jnteJ;est. wa":f9rfeited to the commonwealth at the date of the institution of this suit. and. if so forfeitell·at any time, they will then ascertain whether forfeiture was rljmitted or otherwise relinquished by said commonwealth; and the court instructs the jury that a forfeiture is never favored or implied:; and in ascertaining the said question of forfeiture the court instructs the jury of proof is upon the defendants to prove sl1id f9rfeiture.'. But the «ourt. instead of gi ving said instruction as tendered. struck out the words. · and all the ot her facts and circumstances of the case.' and gave said instruction as thus modified." After,a ca.reful examination of the record, we are unable to find therein any facts,aQd circumst8,noesof the pertinent to the question of forfeiture, other than those mentioned. in the. instruction given by the court. Asa matter of course, the "facts and circumstances" alluded to in the instructirm,' as presented to the court, must have been those bearing on the question covered bjr it, and as they were all embraced in the instruction, as given, the words were properly stricken out. Had there been any "other facts and circumstances" proper for the consideration of the jury, on the question of forfeiture, counsel for plaintiffs in error would have been able, either in specification, brief, or argument, to have directedour attention to· them. The trial judge should not ·confuse or mislead' the jury ,by referring in his instructions to "facts and circumstances," Of wllich in fact no competent evidence has been offered · . The twenty-second error assigned reads: .UThe court erred in giving to the jury defendant's instruction number two. said instructiOn being in the words and figures following. to wit: · The court instructs the jury that if they believe from the evidence that Nathan Fields sold tbe land in controversy fio Nathaniel Taylor in 1796, they must find for the defendant, unless they believe from the evidence that the said plaintiffs are purchasers for value. without notice of said sale; and the court further instructs the jury that a man cannot. under the law, protect himself as an innocent purchaser. if at the time he made the purchase the land was in the open and notorious possession of others than his vendors; and the court further instructs the jury that the form of the deed from J. Wyman :Fields to the plaintiff purports only to convey sucb land as Nathan Fields died possessed of.an\lleft indetinite the. subject-matter of the deed. and this shou ld have put them upon their inquiry as to the possession and condition thereof in regard to adverseoccllpancy and claim; and. if the jury further believe that reasonably diligent inquiry on their part would have shown them that the defendant .vras in possession of the land under a claim of right. they cannot find that plaintiffs are purchasers for value 'without notice.' "

If at the date,of the deed purporting to convey the interest of the heirs of Nathan Fields iu the land in controversy to the plaintiffs, April 30, 1888, other persons than those who conveyed to the plaintiffs were in the open and notorious possession of the land, that of itself was sufficien*

v .52F.no.1 0-54

lI'EDERALREPORTm',

vol: '62;

to put the pl,aiiitift'ifupiOtl 'inquiry,an,dW,1vaa their duty toasaertain the character of the titbfofthose who 'Plaintiffs fl;lil;V 'whicp they could l;aac;l"they, duty. 'this, stated in MinGr's Institutes {volume 2, pp.: ·889., 89,0) in these words: instanc:es ofci)n:structive notice are·' referable' to' $everal classes, all 'thllgen'efalcbnsiderationthll.t'e'ound pUhlicpollc, reg UiTes the that he:was aware, or, at least; that lie should be treated as 'if he of, the'existence oftheprior conveyimce or:cbRrge. They are lis: toHowli': (4) Whete, the adverse claimant is iuttle actuR,ladverse possession of tbe land when thesubilequent purchaser bUys...

as

How. 493, 498, says:

.Im:preme court of the United States, in
,1!

Lea. v.Copper 00., 21

;

\t is insisted thllt ,the, deel! fr<1m ;Lea to 1:"egistered, and the complainant, 'so that he coltJdnot proceed to aSSert' IHa' rights. Davis had possession of the land: when be took William Park'IRa16 deed, claimin-g<forhimself, and adversely to all others; and he so conthiued in possession ,till hesoM the land, in Deeembel1, 1852. This ad verse itJ itself that he held the title, the character of ,whjch t,Qe. was bound ,to ascertain,. ·Lq,rldJa .v. Brant, 10 How.875.,", ... .,.. .. " ' , .' ..... .
; ',: <','1' to

.

r ';

t · · " "

Theea.mu court, in Hughea v.U. S., 4 Wall. 232. said: "The p'alien<tee cannot:colnplain of the for· the Qpen, notorious, partiescluiming under Good· and exolusirve posSe8fiion of the premises by made.bis entry and received the was sufficient to put ingui,ry /loS ,to. the interests, legal or eqUitable,·. held by them; and, itbepesle(lted to the.inquiry, he is uot entitledrto'any greater consideratio'nttJltn if he had made it. and ascertained the actual facts of the case." OJ:} Cordova. v.Hood, 17 Wall. l;Lonq v. Weller's $i'r, 29,: Qrat. 347; Wopd. v.Krebbs, ,30 Grat. 708; Iron. 0>. v. Trout, 83

Rep.,713.' . With great force should this principle applyinthisc!l.I'!e, not only for the geneml reasons as mentioned, but also because of the used in the deed, t9 plaihtiffs. 'The deed says: "WlJereaa, Nathan Fields, at the time of his w,as, seised and possessed oparge bpdies tracts of ,land in the counties of> Lee and Scott, in the which was gra,n,ted by tlJecommon· wealth:,.. Now, therefore, this deed witness,eth * * · that 'Ie ... · do g,:ant unto tbe said parties of the second lla1't all of the said lands said parties of the first part, are entitleilin law or equity." to which

'l'he land:was not described with the usual particularity, and the general termstised were sufficient of themselves to have put the plaintiffs on inquiry. ',The instructiQn, connection with the evidence before the jury, was proper. ' . Assigntnent .No. 23, on the question of forfei ture" is,ill.effect, disposed of 20 j before alluded to·. The matter was 16£tto the jury for ita finding.: ''l'beS334th section of the Oode of Virginia: expressly provides that the auditor's certificates shall be primo. jacie proof of tbe facts stated

in

VAN GUNDEN. t1. VIRGINIA COAL &: IRON CO.

851

in 'This was not as. clearly-stated in the instruction as it might have been, but that was not to, the >prejudice of the plaintiffs, and they will not be permittedto (lofi?plain,Qfit now. "',. .' 'Plaintiffs in error tbe state of Virginia h;:Ld not the right to forfeit to its own use the within that state, and owned by citizens of that and other states, and that the state of Virginia could not vesttiUe to such lands in itself, without some antecedent procedure which would be equivalent to a judicial ascertainment of the facts which are made the occasion of the forfeiture. The supreme court of Virginia has, in number of cases, virtually disposed of this question, and the decisions oOhat court relative to the" forfeiture acts," passed by the legislature ofthat state, will be accepted as conclusive of t4at point by this court. See the cases of Wild's LI',ssees v. SerpeU, 10 Grat. 405; Staats v. Board; Id. 400; Hale v. Branscum, Id. 418. The questions raised by assignments of error numbered 24, 26, and 29 may pro.perlybe considered together. The specifications are as follows; ,

a

"Twenty-Four. The court erred in giVing to the jury defendant'e instruction number foui', l,he said instruction being In the words and figures following, to wit: 'The court instructs the jury that although Fields, 'raylor, and Johnson, the .patentees of ,the 62,OOO·acre tract of land, or their heirs, may have been the owners of the same in 1834, as joint tenants or tenants in COUlmon, yet if they believe that said tract of land was listed upon the land books of Lee county for the purpose of taxation in that yeai' in the name of Taylor's heirs, and was sold for the nonpayment of the'taxes thereon, and purchased' by said Olinger at such sale, and conveyed to him by metes and bounds by the clerk of the county court of Lee county, said Olinger's deed gave a color of title and of possession thereunder by said Olinger. the purchaser, claim· ing title to the whole premises, to an actual ouster and disseisin of the. saill Fields, and J obnson, or their. beirs. and such poseession was adverse; anlflf the said Olinger, and those who claim under .him, continued in such possession uninterruptedly for the length of time prescribed by law prior to the bringing of this snit, it will bar the plaintiffs' right to recover, and the jury shonld find for the defendant.' " II Twenty-Sixth, The court erred in giving to the jury defendant's instruction numbersix, said instruction being in the words and figures follOWing. to wit: 'The court instructs the jury that if they believe from the evidence that .John C. Olinger purchased at a tax sale a tract of land, which is the land in controversy, listed on the land books of Lee county in the name of Taylor's beirs for taxation. and sold for the nonpayment of taxes; that ,he received a deed therefor, by metes and bounds. from Alexander W. Mills, the clerk of the county court of said county; that he recorded the said deed ,in the clerk's office of said county; that he entet'ed into possession thereof under said conveyance; that he placed the same upon the land books of said county in his own name, for the purpose of taxation; that he. and those who hold under' 'him, have paid the taxes regularly thereon from the time of the saidconveYllnce; that he. and those who hold under him, have made improvementsthereon and profits therefrom, without offering to account to the plaintiffs or those under whom they claim; that he. and those who hold under him, have made leases of, portions of said land, in his own or their names. and place'd' the .lessees in the possession of the leased premises;, that he, and

85Z

thollewhOibold' liMer hiin, ,fum. Sold and oonveyOO portions of saId land,and placedtbe plll'chasers tl)ereof in 'posseasion. proceeds of such leases and sales to his own ,or their ow.' use,. withoqt !1Q.(,lQunting to the plaintitTs,Ol' under they cIai'm. the Jury have the right to presume, although the ,skid John C. Olinger only purchased. the interest of tIle Taylol"s heirs hl'sald"62,OOO-acre tract of land. that there was an ouster of the cotenantsof Taylor's heirs. and that his possession, and tbepossession of those under him, was adversary; and ·that, if such adpossession was continuous and un,interrupted for more than the time prescribed by law prior to the, bringing of this !luit. then the have no right to recover in this and the Jury must find for the defendant.' " ' . . "Twenty-Ninth. The erred in giving to the jury defendant's instruction number nine, said instruction being in the words and figures following. to wit: ·The cOlut instructs tbe jury that.!f they believe from the evidence M:Hls, clerk. to him. took that .John C. Olinger. aftllr tbe dllote oftbe actual possession. of the land embraced in deed. claiming the wlloleof said la.nd a,s his own. and excluded the Fields heirs therefrom. such act Wa.s an ouster of the Fields heirs 'as tenantil'in cdmiDon, and such possession by said Olinger was adverse to said Fields heirs from the time of . sucheutry.' ", .' in errQ:rinsfst 'that the, d,ee;(l; under the circumstances detailed in'assignment 24, -did not constitute color of title under whioh he could claim the entire 'tract :ofland described in said deed, and 'that his possession under it could not be adverse to Fields' heirs. Tpey' claim that Fields had not sold his, interest toTaylor, and that only theinterest.of'1'aY1or's heits. wassold at the and that only that interest should have been conveyed by Mills; ,the clerk, to Olinger,and that; if moreW8S conveyed, only title to that interest passed to Olinger·. The defendarlt, relying upon' the alleged deed of 1796, claims that Fields had his interest'iri the land to Taylor, and that at thedatEl'"octhe tax sale Taylor's owned th,e Fields interest. It must be adinitted that, by the act ofldarcq}O, 1832, under which it is claimed that .the land was sold in the llllme of Taylor's heirs, Olinger, by the deed made to him by Mills, acquired a legal title to such interest only as Taylor's heirs had in the land at the time of the sale. . It was for the jury to find what that interest was. Was it' the. interest held by Taylor, as one of the' or did it. also the Fields interest, as claimed by the This was one of the principal questions of factto be found by the jury, llnd it was proper that the law applicable to either finding should be given to them. Again, if the deed to Olinger Conveyed tohini all the land that was on the books in the name ofTaylor's heirs, and that was all of the tract originally patented to Fields, TayJpr"and Johnson, not theretofore sold,an,di,f it was in the deed described 'by metesl\ud bounds, and Olinger into the possession thereof claiming title to all, and exercised acts of ownership over it iu the manuel' set forth in the inst1'uctions" then ,the deed was color of title; and i f he bad possession under it', and claimed adversely to all others qOQtirtuously for the period of time prescribed by law I then the plaintiffs this suit could not recover.

in

VAN GUNDENV. VIRGINIA (:OAL

&:

IRON

CO.

853

What is color of title? It· is matter of law, and, when the facts are shown, it is for the court to determine whether they amount to color of title. In the case of Wright v. Mattison) 18 How. 56, the supreme court, through Mr. Justice DANIEL, said: .. The courts concurred. it is believed without an exception. in defining , color of title' to be that which in appearance is title. but which in reality is no title." In Veal v. Robinson, 70 Ga. 809, it said: "Color of title is anything in writing purporting to convey title to the land immaterial how defective or imwhich defines the extent of the claim. it perfect the writing may be. so that it is a sign. semblance. or color of title. " In Hutchinson's Land l'itles (page 215, § 390) it is defined as follows . deduction of title from some source. however insufficient or irregular; and the value to the disseisor. entering upon land under color of title. of the paper purporting to pass the title, is that. while he may not have the actual occupancyof more than a smaUparcel of the tract or lot of land. in construction of law he is. by virtue of his paper giVing color of title. entitled to claim to be in the adverse possession. not only of the parcel actually occupied, cultivated. or inclosed. but. of the whole area in91uded in the description of bis title. Hamilton v. Wright. 30 Iowa, 480j Taylor v. Buckner. 2 A. K. Marsh. 18," 12 Amer. Dec. 354. We think it is clear that the deed to Olinger gave him color of title to all the land described in it. The court properly so advised the jury, ' and submitted to it all questions of fact relating to his possession under his color of title. Fields' heirs and Taylor's heirs might have been tenants ill common of the land at tbe date of the tax sale in 1834, and Olinger only have purchased the interest of Taylor's heirs; yet if he entered into the possession thereof under the deed, claiming title to all, as set forth in the instructions, it was proper for the jury to determine whether such possession was adverse to his cotenants, and an ouster of all others, and in this particular the instructions fairly state the law. Buchanan v. King, 22 Grat.422; Town v. Needham, 3 Paige, 545,24 Amer. Dec. 248; Culler v. Motzer, 13 Sergo & R. 356, 15 Amer. Dec. 604; Bradstreet v. Huntington,5 Pet. 444; 1 Washb. Real Prop. (4th Ed.) 657. Next in order is tbe twenty-fifth assignment, in the following words: "The court erred in giving totbe jury defendant's instruction number five. said instruction being as follows. to wit: · The court instructs the jury that it is not necessary, when a man enters upon the land under a deed purport. ing to convey to bim a certain boundary. that he should fence or cultivate the entire tract in order to give him adverse possession. It is enough, in such case, if he actually occupies a portion of the tract; the law extends his adverse possession to the boundaries.' ..
..It embraces not only a claim of title, but presents the appearance of a real

It.is. claimed that the court erred in giving this instruction, the plain. tiffs in error insisting that in cases like tbis, where the land in controversy is of that class known as "wild lands," that the rule set forth in the instruction does not appl,}', and that the possession of the

854 is restricted'tGi hisi actual improvement. We think that there is a misconception of the ,authoritips relied"uponby plaintiffs in error, as well as a misuseof,tbe . The words "wild land," as used in the authorities cited, refer to large tracts·of unqccupiedlands,asto which ,One Of is,in the actualilossession of. or of any part thereof. The' momentiany one,. under clliliimofcolor of title, takes actual possession of any part of such land, it ceases to be "wild land," as described in' the cases to which our attention has been called. As was appropriately said by counsel for' defenqant in error, "to say that the possession of 'wild lands' to 'actual occupancy' is a contradiction illterma." The. plaintiffs cite Taylor'$, Deviseea v. Burnsides, 1 Grat. 165, but, as we understand it does not support their position. True, the court (page 198) said:
"It follows from What has been saId that wild and uncultivated lands cannot be made the subjects of adversary possession while they remain completely il1' a state of

We must reltdthe ophliontQ,fully understand the meaning of this sentence, and it is then apparent that, by "completely in a state of nature," the col1rt to land upon which n.o one resided, where' there was no improvemeht upon any' pa.rt,and no cultivation of anyportion of it. In that case' the colirtalso said:
"A change in their condition, to Bome extent, is therefore essential, and the acts by which it IS elfected are oftencthe strongest evidence of actual pos\ session. Without accomplblhed 01' in progress there can be no, residence, or, inipr9vement; use, or employment. EvidenceslJort ot an adyersary claim, but, in the nature of things, cannot establish ah'adversarYPOBs6ssion. ... ... ... In controversiesconcerning wild and hinds, the usual marks of actual possessionareconcnrrent and resldence; the two former,' of. Course. at least in ithe earlier stages of the prescriptive period, toa. very llmiWd extent.Bllt ;the degree is hnmateria.l if the acts be real and bona ft,de. mOre or less is pnimportant, .if tl'1ere be enough to indicateapparent and theaqtual possession thus gained, if extends throughollt the borders ,of the colorable title, whether those be large' or small.", '

In Ellicott v.' Pearl; opiniQu of

'10

Pet. 432, Mr. Justice

STORY,

delivering the

'''fheargument in support of the instructiQn as prayed assumes that there can be. no pdSS61lsion to defeat an title except in one or other of these ways, that is. by an actual.resldence or an actual inclosure,-a doctrine Wholly irreconcilable with principl;6 ilnd Nothing can be more clear than tbata fenc.eis.not indispensable to constitute possession of a tract of land. 'fheerectioil ofa feneels nothing more tblt.n an act presumptive of an intention to assert an ownt>rshipaiId possessi<lh over the property. But there are many other acts Which are equally evidence of such an intention of asserting such oW,nara4ip and such as entering upon land and · thereon, raising a crop ·.felling and selling the trees thereon', oolor" of title. An'entry into possession of a tract of' land, ttndera: deed containing specific 'metes 'snd bounds, gives a constructive possession of!the whole tl'act,if not ,hi Although.

VAN GUNDEN 11. VIR(lIN1A COAL &I IRON CO.

855

there way be no fence or incloBureround the tract, and an actual residence only on a part of it, to oonstitute actual possession. it is not necessary that there should be any fence or inclosure of the land. If authority were necessary for so plain 'a proposition. it will be found in the rase of M081l v. Scott, 2 Dana. 275. where the court say that' it is well settled that there 'may be a possession in fact· of land not actually inclosed by the possessor.' * * * In short, his entry being under color.of title by deed, his possession is deemed to extend to the bounds of that deed, although his actual settlement and improvements were on a small parcel only of the tract. In such a case, where there is no adverse possession, the law construes the entry to be coextensive with the grant to the party, upon the ground that it is his clear intention to assert such possession. " The law applicable to the facts which defendant's testimony tended ,to establish was properly set forth in this We cannot find in all the record any testimony tending to show that the plaintiffs, or those under whom they cla.im, were at any time after the date of the ,deed to Olinger in 1836, and before the institution of this suit in 1890, in the actual possession of any part of the land. Had there been any such testimony plaintiffs would have cited. it; and would have aE'ked the i:lourt below to instruct the jury as to the effect of any fact to be found from it. We are of the opinion that the instruction was properly given. Assignment of error No. 28 reads: "The court erred in giving to the jury defendant's instruction number eight, to wit: ·The court further instructs the jury that, in order to bring notice of the adverse holding of one tenant in common to his coteuant, U is not necessary to give him actual notice; but if the hostile character of the possession is so openly manifested that his observation as a man reasonably careful of his. interest would be sufficient to discover it he would be deemed to have notice.' .. . We find no error in this instruction. It is sustained by principle, and by the authorities we have hereinbefore alluded to, and has been disposed of with specification No. 19. Assignment No. 30 is as follows: "The court erred in giving to the jury defendant's instruction numher ten, to wit: · The court instructs the jury that there is evidence in the case from which the jury may find that Nathan Fields did sell his interest in the lands in suit to Nathaniel Taylor. There is testimony tending to show the execution of a deed, dated January 1,1796, from Fields to Taylor, the subsequent listing of the land in the name of Nathaniel Taylor or his heirs, sales of considerable portions of these lands by Taylor and. his heirs, and theunchaUenged possession by their vendees. These facts, with the failure of those claiming under Nathan Fields. fur nearly a century, to assert title, justify the jury in finding that Nathan Fields parted with his interest in these lands in his life,time.' JJ The plaintiffs in error filed in the court below the affidavits of two members of the jury with their motion for a new trial, the object of which was to prove that the jury was misled by this instruction. Such evidence is not proper for the purpose of impeaching the verdict of the jury l and in this case, after the trial judge had overruled the motion, the affidavits· wete not made part of the bill of exceptions taken by
l

856 plaintIff's,' and are not, tael'ef<ll'e; bElfore us, although counsel have altbemduring, th,eargument.. The main cQntention, so far as t44\ by giving it, invaded the prOy;ilflCe,of the Jury. We do not think so, for ,no rule of law applicableto the courts of the United is violated by.it. The law is corand all matters of fact were submitted to the final deterrectly mWatidil of the Jury. In Rucker 127U. S. 85, 8 Sup. Ct. the suprem:e,court. Mr;Justice delivering the opinlOll,. . "It is no longer an open question tbat a judge of a court of the United in ,submitting a case to.a jury, may, in bis discretion, express his opinronuponthefaqtsj an4,that when no+.ule of lawis incorrectlystated,and all matters 'of fMt are ultimately submitted tathe determination of the jury, such expreBstonsof opinion are not revie,wabJe on writs of error." Railroad 00. v. Putnam, lll:l U. S. 545. ,553, 7 Sup. Ct. Rep. 1 j Raitl'oad 00. v. Vickers, auo, 7 Sup. Ct. Rep. 1216,; .U. S. v. Railroafj, CQ·· 123 U. 5.113, 8 Sup. Ct. 77. . ' In Fletcher 120 U. S. 534-..550,7 Sup. Ct. Rep. 667, in which 'case the 'questions involved in this instruction relating to the legal presumptionsasto the execution ofdeeds to be drawn from the actual, open, and exclusive possession of land for the period prescribed by the statute oflimitations were fully considered, Mr. Justice FIELD, speaking for the court, said: "When; and. Use arelons;t contin ued. they crea'te a pre, origrn;'that they are foun<led upon suchinstruments al:jd as in law would pass the right to the possession and use of the property. .. .. .. We will add, moreover, that tbough a presumption of a deed is one that may be rebutted by proof of facts inconsistl'nt with its isupposedexistence,yet where no sllchfacts are shown, and the things omitted, with regard to the property in controversy, by the respective parties, for 10!1gperiods of time after the execution of the supposed conveyance, can be explained satisfactorily only upon the hypothesis oUts existence, then the jurymay be instructed that it is their duty to"presume StIch a conveyance,and thus quiet the There was evidence before the jury which tended to prove that Fields sold his interest in the land in controversy in 1796, and there was no eviqence that. he was ever in possession of any part of the land since that ,year, ol'that he ever, paid !tuy of the taxes on it. The:re was evidence tenqingto prove that the party to whom Fields is said to have sold his interest exercised acts of ownership over the land, and that his executors sold part of it in 1826, their vendee taking and retaining exclusive and continued possession. There was evidence tending to prove -indeed, there was no contradictory Olinger, since he purchased the land in 1834, (and defendant claims under him,) and his vendees, have paid all taxes due on the land from tbat date to the institution QUilis suit; and that they .have been in the actual, adverse possession of the land continuously frOm 1836 to the time of the trial, under color of title. With this eVideucebefore the jury I together with

SHIRK'. CITY OF LA J'AYETTJIJ.

857,

eleven, to wit: ,'The court instructs the jury t.hat the of time saryti> barlHight ofentl'y on an for land bet,wee..' the year 18.04. and the.yeat 1850 was twenty-five years; that·frOiD the year 1850 to the yearl8q1 the length of iimenecessary was fifteen years; and since the yel,l1' 1861 the length,of tlme necessary has been ten years, from Which. last period, however, the time of any possession eXlsti.ng between the 11th day of April, 1861, and the 1st day of January; 1869, must be excluded.' "

much other of similar irnport,as 'iLppears by? the record, it w@ld have been 'gross en-or for the court 'to 'hav.e refused to give this; inBtruction., 'The next and last er'roJ<assigried, not abandoned,i& the thirty..first, toivit: court erred in giving to the jury defendant's instruction number

We think tllislnstruction in strict accordance withthe statutes of Virginia relating to. this questibn. There was nO evidElIlce before the jury rendering it as claimed· by plaintiffs in error, and: the court very properly ga\'e i t . , '.' . We havenow c.onsideredand passed upon an the specifications of errornot abandoned by the plaintiffs in error, and we find no error'in the r:ecord; therefore the judgment is' affirmed, with costs.

SHIRK'

f'.'

CITY OF LA FAYE'rl'E.

(C1.rcuit Court, D. Indiana. October 94, 1892.)
NO,8,788.

1.

CONSTITUTIONAL

LAw-TRuST··s, , . '. · '. whichpr()vides that it shall be unlawful for any person, . Rev. St, lDd. sociation, or corporation to appoint a nonresident a "trqsteein a deed, or other instrum.ent in wri.ting, ·.e xcept wills, for. any purpose whatever, II is in conflict with CODSt. U. B. art. 4, §2, which provides that "citizens of each state shall be entitled 1::0 all tbe privileges and immunities of citizens in tile severalsta,tes. "

as-

.,; FEDERAL CotiRTS...:.J"URISDICTION,-DIVJl;BSE CITIZENsmp.

a citizen of Illinois 111 appointed trustee by an Iudianacourt of property situQ,ted in .latter state, the citizllnsbip of such persoD for the purpose of Jurisdiction is nlit aftected by'such .appointment, and he may maintain an' action ill a federal co.rt for Indiana in. his trust capacity for damages to sllch property.

At Law. Action by Elbert W. Shirk, trustee, against the city of La Fayette. On motion to dismiss the complaint for want of jurisdiction. Dverruled. A. a. Harris, for plaintiff. John F. McHugh, for defendant.
BAKER, District Judge. Action by the plaintiff, as trustee, against the defendant, to recover damages for the diversion and use of water. The complaint alleges that the plaintiff is a citizen of the state of Illinois, and that the defendant is a citizen of the state of Indiana. It further alleges that the plaintiff' was duly appointed trustee of property situated