THOMAS et al. v. LUKENS, 259 F. 543

PRITCHARD, Circuit Judge (after stating the facts as above). It is a well-settled rule that a plaintiff in a suit of this character is required to recover on the strength of his own title. In other words, he cannot rely upon the weakness of defendant’s title, and until he shows a legal title to the land involved he is not entitled to recover. In Reusens v. Lawson, 91 Va. 226, 21 S.

E. 347, it is held: “In an action of ejectment the plaintiff must recover on the strength of his own title, and if it appear that the legal title is in another, whether that other ’be the defendant, the commonwealth, or some third person, it-is sufficient to defeat the plaintiff.” Counsel for' defendant insist that the plaintiffs’ grant is void upon the ground that, at the time same was issued, the title had passed . from the state by virtue of the land commissioner’s sale, and was then vested in the defendant.

It was incumbent upon the plaintiffs as a first step in the proceeding to show they derived title from the state, and this they did not do, inasmuch as the title, as we have said, had passed from the state to the defendant by virtue of the land sale.

The learned judge who heard this case in the court below, among other things, in referring to the questions involved, said: “At the beginning of this trial, when the plaintiffs offered in evidence a copy of the grant to Fickey and Thomas, dated the 31st day of October, 1883, the defendant objected to the admission thereof, substantially for three reasons: First — because the copy tendered was not properly verified. Second — because such grant had been issued without legal authority and in contravention of

article 13, § 4, of the Constitution of the state; the legislative act of the 22d day of February, 1883, by authority of which such grant purports to have issued, being unconstitutional.

Third — that the issuance of such grant was limited by an. exception of such legislative act, set forth at the end thereof, to the effect that no grant made under it would affect any title derived from sale made by a court'of school lands of waste, unappropriated, or forfeited lands; that in 1879, three years before, the commissioner of school lands had, in regular judicial proceedings, sold the land in controversy to George Harmon, under whom, by mesne conveyances, the defendant now holds title and possession; that therefore this act of 1883, if constitutional, by reason of this exception embodied in it, did not authorize the issuance of this grant and it was and is therefore void. * * * “On the other hand, plaintiffs, while admitting possession of the land to be in defendant, -tender to show by legal evidence that his title under his school commissioner deed of 1879 has become forfeited under

chapter 105 of the Code, by reason of the omission of the land from the land books and nonassessment of taxes thereon- for five consecutive years, by reason whereof, it is insisted, defendant’s older title has become vested in them by reason of their junior title under the grant and by devise and inheritance. “As I view the matter, the crucial question for me first to determine is the legality of the 1883 grant or patent to Hickey and Thomas, the foundation of plaintiffs’ claim of title. While it may be pure dicta in the case, I am convinced that Judge Brannon’s discussion of the purpose, intent and effect of the constitutional provisions contained in

article 9, § 2, of the Constitution of 1863, and

article 13, §§ 2, 4, of the present

(1872) Constitution of the state, set forth in State v. Harman, 57 W. Va. 447, at page 460, 50 S. E. 828, is entirely correct in fact and conclusion — that is to say: That both of these provisions were enacted to change in toto the old Virginia system by warrant, entry, survey, and grant, for the disposition of waste, unappropriated, and forfeited lands vested in the state, and substitute therefor a system by which, through the intervention of judicial proceedings, a sale thereof would be required, the proceeds thereof to go to the state school fund; that wliile the constitutional provision of 1863 made an exception in favor of entries made prior to 1863, the

article of the 1872 (present) Constitution, by reason of its omission of this exception and by virtue of its other provisions exclusive in effect, made this judicial sale method the sole and only way by which these waste, unappropriated, and forfeited lands, vested in the state, could thereafter be disposed of, and finally and completely negatived all right or power on the part of the Legislature to provide for their disposition by grant or otherwise. * * * “However, it seems to me very clear that under the exception and limitation contained in this act that at the time this patent issued in 1883 the Governor of the state was without power or authority to act in the premises, and its issue was wholly illegal, and the grant itself must he held therefore' null and void, and this for the reason that the land had been sold in 1879 in regular judicial proceedings by the school commissioner, and by him conveyed to Harmon, the purchaser, and was not, therefore, subject to grant under the terms and intent of the act. “This sale and conveyance, thus provided for by the ConstituUon, it has been well settled in this state, constituted such deed in effect a substantial new grant of title from the state itself, and entitled the purchaser to have the land assessed in his own name, regardless of any delinquencies on the part of any former owner in the matter of assessment and payment of taxes, and entirely cut off any such former owner’s right of redemption; and such title so vested in the purchaser could not be forfeited until he had thereafter allowed it to be omitted from the land books and nonassessed with taxes for five consecutive years.

No such forfeiture had or could have accrued at that time, 1883, when the Governor attempted to make this grant, for only three assessment years had intervened since the purchaser, Harmon, had obtained his title from the school commissioner proceeding; and this act of 1883 could not under its exception ho made applicable to affect this land after it has been the subject of such judicial sale in school commissioner proceedings. “The ultra vires act of the Governor in issuing the grant rendering it void ab initio, its validity could not be subsequently established by any delinquency of Harmon or his subsequent grantees in allowing his good title to become forfeited.

If he or they did so allow it to be forfeited, the land thereby again vested in the state, to be again sold under another school commissioner proceeding, unless the state should elect to allow him or them to redeem by payment of taxes, damages, and costs. This right to redeem the state could elect to refuse, but in practice in this state it is always allowed.

I therefore conclude that Hickey and Thomas, in 1883, could not and did not secure either title or color of title, by reason of constitutional inhibition and the limitation in the act of 1883, and that the grant seeking to give them title was entirely null and void. The plaintiffs here are the heirs at law and trustees of these two men; they can recover only on the strength of their own title, and not upon the weakness of the defendant’s.

They have no other paper writing, from any one, upon which to base a claim of color of title, and if this grant, although void for the purpose of securing legal title, should be held nevertheless sufficient to confer upon them color of title, such color of title can avail them nothing, unless accompanied with proof of ten years open, notorious, exclusive, and adverse possession under the law of this state. Such evidence of possession they admit cannot be produced by them.

This being so, It would he clear error to allow them to assail defendant’s title by showing It to be forfeited, and it becomes unnecessary to protract the trial by either permitting or requiring the defendant to introduce evidence as to his possession. The plaintiffs cannot recover, because they have no legal title to the land and no color of title supported by the required possession. This being true, the defendant need prove nothing as to his title.” The foregoing is a fair statement of the contentions of the parties, and we think the legal conclusions based thereon are correct.

Therefore we do not deem it necessary to enter into an extended discussion of the questions involved, other than to say that we have carefully considered the cases relied upon by defendant, but are of the opinion that they do not apply to the case at bar. A careful consideration of the provisions of the Constitution of West Virginia relating to land, and the statutes passed in pursuance thereof, clearly show, as we have stated, that at the date of the issuance of the grant the state did not possess title to this land. For the reasons stated, judgment of the lower court is affirmed. Affirmed.