
    Birch v. Alexander.
    October Term, 1791.
    Tracing Titie —Necessity for Rinding Seisin in Crown. —In tracing a title In a special verdict, it is not necessary to find a seisin in tile Crown; because that is the ultimate point beyond which the party is not bound to so.
    
    Titie by Adverse Possession — Special Verdict — Suffi= ciency. — what is a sufficient finding- in a special verdict of such a length of possession as will give a title.
    Northern Neck — Nullum Tempus Occurrit Regi. — The maxim, nullum tempus occurrit regi, never applied to the Proprietaries of the Northern Neck, of Virginia.
    This was an appeal from the District Court ■of Dumfries, in an ejectment brought by the appellee. The jury found a special verdict, “ that Sir William Berkley, Governor of Virginia, granted to Robert Howsen, the lands contained within a patent bearing date October 21st 1669, whereof the lands in question are a part, lying within the proprietory of the Northern Neck, which patent they find in these words ; to all &c.” the patent is in the usual form, granting 6000 acres of land, in consideration of the transportation of a number of persons into the colony, and is abbreviated thus, “to have &c. yielding &c. provided &c.” — They find the act of Assembly passed in the year 1736, entitled “An act for confirming and better securing the titles to lands in the Northern Neck, held under the right honorable Thomas Eord Eairf ax, baron of Cameron, in that part of Great Britain called Scotland.” Also the act passed in the year 1748, entitled “An act for confirming the grants made by his majesty, within the bounds of the Northern Neck, as they are now established.” “That on the 13th of October 1669, Howsen, being seized of the lands contained in the aforesaid patent, assigned and conveyed all the lands aforesaid therein contained, to John Alexander, by deed poll, recorded in Stafford court which they also find in h®c verba.
    “That John Alexander entered, and was seized and possessed as the law requires, and by a paper purporting to be his will, devised S00 acres of the said land to John Dry, 200 to Elizabeth Hoomes, and the residue to his two sons, Robert and Philip, and their heirs.”
    «“That after the death of the said John Alexander, his son, and heir at law, Robert, by a deed executed in February 1690, confirmed to his brother, Philip, the lands left him by the said will, being a moiety of the land in question. — That in February 1693, the said Philip executed a deed to his brother Robert, of all his share and interest in the land contained in the above mentioned patent, with a reservation of 500 acres, which are no part of the lands in question, and neither Philip nor his heirs nor any claiming under him have since claimed any part of the land in question.
    “That the said Robert Alexander, after the said conveyance from his brother, entered into the land in the declaration mentioned, being part of the land contained in the aforesaid patent, and was seized and possessed thereof as the law requires and so continued till his death, which happened before the 1st of June 1704, having previously thereto made his will, bearing date the 22d of December 1703, whereby he devised to his sons Robert and Charles the lands in question in fee simple equally to be divided, which will they find in hsec verba.
    “That the said Robert left two sons, Robert his eldest, and Charles, who died intestate and without issue. That Robert after the death of his brother, was seized and possessed as the law requires, of all the land in question, and so continued until his death, which happened in the year 1735, leaving two sons, John his eldest, and Gerald — also two daughters, Sarah and Parthenia ; that by his will dated in 1735, he devised several parcels of land to his said sons and daughters, and the lands in question, comprehended within the description of the residue of his real estate, to his sons John and Gerald equally to be divided in tail,” which will is also found.
    “That the said John and Gerald entered into the lands in question, and were thereof seized and possessed as the law requires, and that John continued so seized and possessed until the time of his death.”
    “That they sued out a writ of ad quod dam-num, in order to dock the intail of the said lands, and an inquisition being found thereupon, they, by a deed of bargain and sale conveyed the said land to T. Dade, who afterwards re-conveycd the same in fee simple : ” Which writ, inquisition and deed are found. “That there were other intailed lands adjoining, not included in the inquisition ; that no lines were shewn to the jurors or surveyed in their presence — no consideration paid by the said Dade, and that the inquisition was fraudulent.
    *“ That an act of Assembly was passed, and obtained the royal assent, for docking- the intail of Gerald’s part of the said land, which was an undivided moiety of the lands in question ; that no partition of the said lands was ever made between the said John and Gerald, or any claiming under them. ”
    “That John being so seized and possessed did in his life-time give to his son Charles his undivided moiety of the said land, and delivered him the possession thereof. That he died in 1764, leaving issue six sons, of whom the said Charles (lessor of the plaintiff) was the eldest, and by his will made the 16th of October 1763, devised to his said son Charles the lands in question by the following clause.” “Also I give to my son Charles all things already given him, and which he has now in possession.
    “That the said testator John, in his lifetime conveyed to plaintiffs lessor so much of the land in question as lies to the westward of four mile run, laid down in the said survey annexed.”
    They also find the act of Assembly for settling the titles and bounds of lands.
    They find ta grant from the proprietor of the Northern Neck, bearing date the 3d of March 1730, the bounds of which they ascertain, by reference to the survey, and is the land in question.
    “That Robertson possessed the said land from the year 1733, to the year 1743, when an ejectment was served by John Alexander, for so much of the land as was included in Howsens patent, and he recovered a judgment in 1751, till which time Robertson continued in possession.”
    “That James Robertson recovered from Robert Alexander, and was put into possession of the lands contained within his grant by writ of possession in 1765.”
    “That Robertson died in 1768, leaving issue a daughter Jenet, wife of Birch, the defendant, to whom, Robertson by his will devised the land contained within his patent.”
    “That the land in question is included within Howsens and Robertsons grants, and is &c.”
    The District Court gave judgment for the plaintiff from which the defendant appealed.
    
      
      Tracing Title to Land. — Sec principal case cited in Clay v. while. 1 Munf. 173.
    
    
      
      Adverse Possession. — The principal case is cited in Archer v. Saddler, 2II. & M. 377; Mooberry v. Marye, 2Munf. 466; bee v. Tapscott, 2 Wash. 277; Birthright v. Hall, 3 Mnnf. 541. See monographic note on “Adversary Possession” appended to Nowlin v. Reynolds. 25 Graft. 137.
    
    
      
      Statute of Limitations. — The principal case is cited in Nimmo v. Com., 4 II. & M. 71. See monographic note on “Statute of Limitations.”
    
   The PRESIDENT.

— Many objéctions have been made at the bar to the insufficiency of this verdict. The first is, that the crown is not found to have been seized of the land in question, at the time of the grant to How-sen. According to the feudal system, the king was seized of all the lauds in Virginia, as chief magistrate; and, whatever may

have been the practice in England, *seizin in the crown is never found in this country, because that is the ultimate point, beyond which a party in tracing his title is not bound to go.

It was next contended, that by the patent to Howsen, only an estate for life passed, there being in it, no words of inheritance. That, for want of a seal to the patent, this grant was not embraced by the confirmation act of 1748, and of course, that the prior grant of the crown in 1668, to the proprietors of the Northern Neck, had deprived the crown of a right to make this grant to How-sen. That the assignment from Howsen to Alexander, “of all the land contained in this patent,” not appearing to have been endorsed on the patent, did not pass the land in question. — These and other objections were strongly insisted upon by the appellants counsel, and though they might all of them be controverted, yet they may be all falsely admitted in this case, and then how will the cause stand ?

In 1669 John Alexander entered, and was seized and possessed as the law requires. Not having title, he was a disseisor upon the proprietor of the Northern Neck, in whom the title was. The succession from him is continued regularly down, and each successor is found to have been seized and possessed as the law requires, and no entry of the proprietor’s is stated, or claim by them to the land, till the grant to Robertson in 1730. So,, that there is a clear seizin and possession of 61 years found under the disseisor, without any entry in the meantime to purge the dis-seisin. Here is a term, not only sufficient to give a title in ejectment, but to bar a writ of right, which alone would admit an enquiry into the mere right.

The counsel for the appellant observed, that the possession was not so found as to give a title ; not being found to have been uninterrupted. But the ancestors of the appellee being stated to have been successively seized and possessed from 1669 to 1730, and no interruption found, their own maxim “that what appears not, is to be taken as not having existed,” fixes the adverse possession to have been uninterrupted.

The justice of the maxim, nullum tempus-occurrit regi has been questioned, or rather the application of it to a case like this, where it is resorted to, to support a new grant to one citizen, to the prejudice of an antient grantee and possessor, for some defect in his. grant. But that either the reason of the rule extends, or that the rule itself was ever applied to preserve the title of a lord, we do not admit ; and believe the appellants counsel was misinformed, as to the point having been otherwise decided in the old General Court.

*On this point therefore, we affirm the judgment, without deciding on the other points. And we are happy in believing, that in establishing this ancient possession, we accord with the spirit, if not with the letter of the several laws passed since the year 1710, for the protection of such possessions, against attacks on the ground of legal defects.

Judgment affirmed.  