WRIGHT vs SWAN, 6 Port. 84

GOLDTHWAITE, J. This was an action of trespass, instituted in the Circuit Court of Montgomery county, to recover the tract of land described in the declaration, under the statute to try titles ; and the plaintiff in the court below having obtained a judgment, the defendant now prosecutes this writ of error. From the bill of exceptions, which was taken on the trial in the Circuit court, it appears that one Norton, in January, one thousand eight hundred and thirty-five, entered the land in controversy, at the proper land office, and received a certificate of final payment.

On the fourteenth of December, of the same year, Norton conveyed the land to the plaintiff. The action was commenced in February, one thousand eight hundred and thirty-six, and the defendant admitted he had possession when the suit was instituted; On this evidence, the plaintiff rested his case. The defendant produced no paper title, but pro'ved that,he had been in possession of the land, for four or five years, and had made valuable improvements on the land.

The Circuit court charged the jury that the title thus shewn in evidence by the plaintiff, was sufficient to enable him to recover the land in this form of action, and refused to charge the jury that the deed from Norton, under which the plaintiff claimed, was void and inoperative, because of the possession of the land by the defendant at the time of its execution. In the case of Goodlet vs. Smithson, decided at this term, this court recognized the principle, that a purchaser from the United States, had before patent an inchoate legal title which could be sold under an execution at law.

The principle of this decision applies with equal force to the present case. The title thus acquired may be conveyed to the grantee of the purchaser, in the same manner as any other legal title, and the estate will be transferred by such conveyance. But another question is presented by the record in this case, of some importance.

It is insisted, that although the purchaser from the United Suites, might be entitled to institute a suit for the recovery of the land, yet inasmuch as the defendant was in possession at the time of the conveyance f!o the plaintiff, the deed to him, for this reason, was inoperative, and passed no estate.

Waiving an examination of the question, how far an adverse possession will render a deed inoperative from one out of possession, until a case shall be before us, presenting it directly, we will consider if the defendant in this action, has shewn himself entitled to insist on such a defence. 'There can be no, entry which will create a title adverse to the government ; and it is shewn that at the time the defendant entered the land it was a part of the unsold public lands. It is also necessary, to constitute an adverse possession, that it shall be under color of title.

It is not essential, that the title be good : indeed no matter how defective, the result is still the same: no question arises in which its strength requires to be examined.—Smith vs Burtis; Jackson vs Waters. In this case the defendant does not attempt to defend himself by virtue of any title or under color' of title, and the grant from the United States, uuder which the plaintiff claims, is recent.

To hold that the defendant is authorised in .such a case, to defend against one claiming mediately or immediately from the government, would be subversive of well settled and established principles, —Jackson vs Bonnell et at: Small vs Procter: See also. The judgment must be affirmed. 5 Porter, 245. 17 Viner, 176-1 Burr, 109. 9 Johns. 174. 12 Ib. 365, 9 Johns. 162—2 Caines, 183 15 Mass. 495 2 Seargt. & Rawle, 565.