
    *The Commonwealth v. Hite.
    July, 1835,
    Lewisburg.
    (Absent Brooke and Carr, J.)
    Escheat — When Possession Vests in State. — Inquisition of escheat for want of heirs of person last seized, vests possession in the commonwealth immediately, if the possession be vacant, but not otherwise; for if any have adversary possession oi the escheated land at the time of the office found, entry or seizure by the officers of the commonwealth is necessary to give her possession.
    Same-Same. — And even when the possession is vacant at the time of the office found, the inquisition, in order to have the effect per se of vesting the possession in the commonwealth, must be duly returned to the proper courts, according to the statute 1 Rev. Code, ch. 82, § 2.
    Information for Intrusion — Nature of Action, — An information for intrusion on lands of the commonwealth is of the nature of an action of trespass, and therefore cannot be maintained unless the commonwealth shall have acquired the possession.
    Same — Special Verdict Defective — Effect.—Upon an information for intrusion on land of the commonwealth, defendant sets up title in himself; a special verdict, — defective in not finding, that the inquisition of escheat under which the commonwealth claims, was duly returned, in not finding that the possession was vacant at the time of the inquisition, or documents by which the fact could be ascertained, and in not finding the title set up by the defendant with certainty and precision,— Hekd, too imperfect to enable the court to give judgment for either party: and therefore, verdict set aside and venire de novo directed.
    
      This was an information filed, in October 1828, by the attorney for the commonwealth, in the circuit court of Cabell, at the instance of the escheator’ of that county, against Hite, for an intrusion on land of the commonwealth.
    The information alleged, that Hite had, unlawfully and forcibly, intruded on a parcel of 400 acres of land, lying in the county of Cabell, part of a grant to John Savage and others, and by partition thereof afterwards *designated as lot number 45, which had escheated to the commonwealth by the death of Matthew Jones, who died seized thereof, intestate, and without heirs, as was found by an inquisition of escheat in 1820, returned to and filed in the clerk’s offices of the county and circuit courts of Cabell; and that Hite had unlawfully and forcibly held possession of the 400 acres of land, so intruded upon by him, from the 22d July 1818 till the filing of the information, and during all that time kept the commonwealth from the possession thereof, and still continued to keep and detain the same from the commonwealth. Hite pleaded not guilty; and it was agreed, that he might, under that plea, give in evidence and rely upon, any and all matters which he might have especially pleaded in bar. Upon the trial, the jury found a special verdict to the following effect—
    1. That a grant was regularly issued, in 1773, to John Savage, Matthew Jones, David German, and fifty-nine others, for 28,627 acres land, lying in the now county of Cabell, whereof the 400 acres in the 'information mentioned, was part.
    2. That in 1775, some of the grantees and part owners met on the land, and by verbal agreement proceeded to divide a portion thereof among themselves and other part owners; and several of them took possession, in pursuance of that division, of the lots then and so assigned to them, and thenceforth claimed the exclusive property in the lots so assigned to them respectively, and have ever since possessed and enjoyed the same.
    3. That in 1809, a suit was brought in the superiour court of chancery of Staunton, by W. Coleman and others, part owners of the grant, against D. Morgan and others, also part owners of the same, claiming shares of the lands granted, insisting that the partial division of 1775 was unjust, and praying that it should be set aside; which suit was not yet finally determined as to all the parties thereto; but that the chancellor, in 1817, by consent *of all the parties then before the court, made a decree appointing .commissioners to divide the lands in Savage’s grant, having respect, as far as practicable, to the division of 1775; to estimate the difference between the values of the several lots, in order that such difference might be equalized by payments in money by the owners of the more valuable to the owners of the less valuable lots; to estimate also, and report, the value of improvements made on the said lands; and to report who had made, or who had purchased, such improvements, and were then the owners thereof, and on what particular lot or lots such improvements were, in order that the court might decree compensation for the same, when it should be satisfied of the right of the owners of such improvements to have compensation therefor.
    4. That the commissioners appointed by this decree, proceeded, in 1817, to execute the same, and made a report to the court, shewing a division of the whole lands granted, wherein the division of 1775 was followed as far as it was made; estimating the sums due to and from the several lots to equalize the division; and estimating too, the value of improvements made on the lands, shewing on what particular lots they were made, by whom made, and who were the purchasers and then the owners thereof.
    5. That the chancellor confirmed this report and division; and had since proceeded, from time to time, to decree to those who then were, or had since made themselves, parties defendants in the cause, the lots claimed by them respectively, upon their producing evidence of their rights to particular lots; and to decree payment of the equalization money to such of the parties to whom the same appeared to be due.
    6. That Hite, the defendant here, entered himself party defendant in the suit in chancery, and put in an answer, in order to obtain compensation for improvements made on part of the land, of which he had been *divested by the division and report made by the commissioners under the decree of the court; in which answer, he shewed, that David German was one of the original grantees in the Savage grant, as was mentioned in the original bill; that part of the land to which those claiming under German were entitled, was ascertained in the report and survey returned by the commissioners, by the number 47; that German conveyed his rights to Isaac Uarue, upon whose death his son became entitled to the same, and conveyed them to íjdward M’Ginnis, and he sold it to Mansah Bostick, as appeared by papers filed in the cause to prove Bostick’s claim, that Hite purchased of Bostick, in 1813, 200 acres of the land held by him and derived from German; that on this parcel of 200 acres Bostick made valuable permanent improvements, in addition to some improvements, which were on the same at the time of his purchase, and for which he had paid a valuable consideration ; that Hite had paid valuable consideration for the improvements on the land at the time of his purchase from Bostick, and had himself since added other permanent improvements; that these 200 acres of land had been thrown, by the survey and report of the commissioner, part into lot number 45, and part into lot number 61, designated in that report; and that the im-provemen ts belonging to Hite on lot 45 were of the value of 112 dollars, and those on lot 61 were of the value of 445 dollars, as ascertained by the commissioners. Therefore, Hite prayed the court to decree to him those two sums, or such other sums as he should be deemed justly entitled to, and that his whole interests should be secured and protected in such manner as the court should think equitable.
    
      7. That the chancellor, in August 1821, decreed, that the owner of lot 45, as laid off by the commissioners, should pay Hite 112 dollars, and the owner of lot 61 should pay him 445 dollars (those sums being the value of the improvements, to which Hite was entitled from *the owners of those lots respectively, according to the report of the commissioners) in certain instalments specified in the decree; and in default of such payments, that the marshal of the court, after advertisement &c. should proceed, in pursuance of an agreement between the parties of the 8th October 1816, to sell so much of the said lots respectively, as would be sufficient to pay Hite the sums with which they were respectively charged.
    8. That those moneys not being paid to Hite, the marshal, in pursuance of the decree of August 1821, proceeded, in November 1823, to make sale of the lots 45 and 61, when Hite became the purchaser of both lots; and the marshal having reported the sales to the court, the chancellor, in January 1829, approved and confirmed the report, and decreed that the marshal should make a conveyance of the lots in fee simple to Hite, and cause the conveyance to be recorded in the county court of Cabell.
    9. That the marshal, accordingly, made a conveyance of the lots 45 and 61 to Hite, by deed dated the 13th May 1829, and duly recorded.
    10. That the lots 45 and 61 contain 400 acres each; and the 400 acres contained in the lot 45, is the same 400 acres of land mentioned in the inquisition of escheat returned in this cause.
    11. That the defendant Hite claimed the land, when he first entered, under a purchase from Mansah Bostick, who claimed under David German, one of the grantees in the Savage grant; but that the lot 45 was, in the division of 1775 before mentioned, assigned to Edmund Taylor assignee of Matthew Jones, who was another of the grantees in the Savage grant; that in the name of Matthew Jones, and as his property, the lot 45, containing 400 acres of land, was escheated by inquisition of escheat in 1820 — which inquisition was found in fuse verba, and it stated, that Jones died on or about the-*day of — intestate and without heirs, and that he was at the time of his death seized and possessed in fee simple of the land designated in the Savage grant as lot 45.
    12. That after the inquisition taken and returned, the escheator of Cabell county, in April 1829, proceeded to sell the land as the law directs, and one Davis became the purchaser thereof, for 305 dollars; but Davis had not yet paid the purchase money to the commonwealth, nor had he or any other person acquired title from the commonwealth since the escheat.
    13. That the before mentioned division of 1775, was made in pursuance of a verbal agreement of some, though not all, of the part owners of the Savage grant, and that division was not of record, until it was incorporated into, and made part of, the report of the commissioners of the court of chancery of 1817: that there are no evidences of assignment or transfer from Matthew Jones to Edmund Taylor, except the parol division of 1775, and the proceedings in the suit in chancery above mentioned, of which the report of the commissioners of 1817 form a part, which report recognizes Edmund Taylor as assignee of Matthew Jones: that Taylor was present at the division of 1775, claiming to be assignee of Jones, but Jones was not present at it: that neither Taylor, nor any one claiming under him, nor Jones, took any possession of the land at that or any time since: but that afterwards, in 1801, one Waggoner came to Cabell, claiming to hold Taylor’s right, but he took no actual possession of the lot 45, the same being then in the possession of squatters, or persons temporarily settled upon it, without any claim or title thereto.
    And if upon the whole case, the law was for the commonwealth, then the jury found the defendant guilty; *but if the law was for the defendant, they found him not guilty.
    The circuit superiour court held, that the law on the special verdict was for the defendant, and gave him judgment: to which this court, on the application of the attorney general, allowed a supersedeas.
    The attorney general, for the commonwealth.
    Johnson and Smith, for the defendant in error.
    
      
      See monographic note on “Escheat” appended to Sands v. Lynham, 27 Gratt. 291.
      See also, note appended to the principal case in 29 Am. Dec. 232. The principal case is cited in Sands v. Lynham, 27 Gratt. 298.
    
   TUCKER, P.

An information for an intrusion is a method of redress for a trespass committed on the lands of the commonwealth : it is of the nature of an action of trespass quare clausum fregit; and, accordingly, it never could be maintained by the crown, until the king had acquired the possession. The manner of acquiring such possession, is alwaj’s by matter of record; for it is a well established maxim of the english law, that the king can neither take nor part from any thing, but by matter of record. Therefore, for the purpose of affording this authentic evidence of his rights, where they have devolved upon him by matter in pais, as by dying seized without heirs, by alienation to an alien, or the like, inquests of office were devised by the law. These offices are either offices of entitling, or offices of instruction, the former of which have reference to the matter of escheat for want of heirs. Their effect is to vest the possession in the crown by the office only, without seizure on the part of the king, provided the possession be vacant. But if any o'ther except him in whose right the king claims, be in possession at the time of the office found, the king shall not be in actual possession till seizure. 3 Blacks. Comm. 259-260; 5 Bac. Abr. Prerogative E. 7, pp. 565, 575; 7 Com. Dig. Prerogative, D. 68, 72, 74, pp. 78, 81. Mr. justice Story, in Fairfax v. Hunter, 7 Cranch 621, quoting the above authorities, and some cases from the Year books, which he had ^doubtless an opportunity of examining, says' — ■ “Even after office found, the king is not adjudged in possession, unless the possession were then vacant; for if the possession were then in another, the king must enter or seize by his officer, before the possession in deed shall be adjudged to him.” From these authorities, it is clear, on the one hand, that the office found vested the possession in the crown, where the possession was vacant at the time; but that if the possession was not vacant, it did not become so vested, and of course the information for intrusion could not be maintained, until there had been an entry or seizure by the officers of the crown. If this be so, it is equally clear, that it must be a good defence to the information, that the possession was not in the king by the inquest of office, by reason of the adverse possession of another at the time it was found.

But though the office found vested the possession when it was perfected by being duly returned, yet until it was so perfected, I conceive it had no such effect. For, as we have already seen, the crown could only take by matter of record, and inquests of office were devised for the purpose of affording authentic record evidence of the title of the crown. But the inquisition itself is no record. It is an indenture between the escheator and the jury, found either ex officio or by the command of a writ directed to the officer, 3 Blacks. Comm. 258, and which he is to return either into the chancery or the exchequer, S Bac. Abr. 575, in note, or into the king’s bench when the record of conviction and seizure was there. Before such return, no grant or letters patent could be issued by the crown, but all such grants before return were void. 3 Blacks. Comm. 259. But when returned, then and not till then, the inquisitions became records; then and not till then, the title of the crown was complete, and it became invested with the possession, provided the possession was not *adversary in another. And there was great reason for requiring such a return of the inquisition. Its operation being to seize the lands into the hands of the crown, by a proceeding entirely ex parte, it was proper so to provide, that any person interested might contest it. It was therefore required that the inquisition should be returned to a court of record, where it might be contested by traverse, or monstrans de droit, or petition of right, according to the nature of the case. By the traverse, the traverser denied the facts found by the inquisition ; by the monstrans, he relied on those facts themselves, as shewing his title; and by the petition of right, he disclosed new facts not found by the office. 3 Blacks. Comm. 260. But how could this be done, if the inquisition were kept in the pocket of the escheator, instead of being returned to a court, there to have the force of a record, affording notice to all the world of the title of the crown, and an opportunity to all persons interested, of asserting their claims to the property, so seized into its hands? Little foundation, indeed, would there be for 'the commentator’s boast, that “it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon or seize any man’s possessions upon bare surmises, without the intervention of a jury,” if such an ex parte finding were to vest the title in the crown, without affording those interested an opportunity of contesting it, by having it re-1 •turned into some court of justice. When so returned, and thereby perfected, the title of the crown doubtless related back to the' finding, as in the case of a grant; Knight’s case, 5 Co. 56b, but until returned, I cannot but think the title was defective, and the-possession did not vest. It is scarcely necessary to say, that the provisions. *of our law, like the law of England,, require the return of the inquisition into the courts of record. B3’ our statute, one part is to be returned into the office of the county court there to be recorded, and the other part is to Be returned into the circuit court, within a month after the inquest taken. 1 Rev. Code, ch. 82, % 2, 8, pp. 295, 6.

In this case, the information distinctly sets out, that the inquisition was returned to and filed in the clerk’s offices of the county and circuit courts of Cabell; but that fact is not found bj the jury, in the special verdict, though they have found and set forth the inquisition itself in hsec verba. It is clear, therefore, on this ground, that judgment cannot be given for the commonwealth upon this special verdict.

Then, as to the matter of defence. The defendant pleaded not guilty, but it was agreed that he might give any other matter in evidence, which he might have pleaded specially. Now, he might have specially pleaded his own possession at the date of the inquisition found; for if he was then in possession, he was not liable to be proceeded against as an intruder. 7 Com. JDig. Prerogative, D. 68, p. 78. Accordingly, he adduced evidence designed, I presume, to shew his possession in avoidance of the possession of the commonwealth. But in this he failed; for though he shewed a possession, it was a possession without pre-tence of title. In another respect also, the verdict is too uncertain to enable us to give judgment. Judgment cannot be given for the commonwealth on the findings of the special *verdict, because if the grantees in the Savage grant were joint tenants, and the grantee Matthew Jones died before the 1st January 1787, when the statute abolishing the jus accrescendi among joint tenants (1 Rev. Code, ch. 98), took effect, Jones’s right survived to his co-joint-tenants; and in that case there was an adverse possession in them, and perhaps in Hite, as tenant in common with them, which prevented the possession from vesting by the operation of the inquisition found itself, without an entry or seizure by the officers of the commonwealth. But the Savage grant not being found, this matter is left in uncertainty. Here, then, are two essential defects in the special verdict, rendering it impossible for this court to know for which party to give judgment. If the inquisition was duly returned, if there was a tenancy in common instead of a join-tenancy in the grantees in the Savage grant, or if there was a jointenancy, and Jones survived to a period subsequent to the statute which abolished the jus accrescendi, I should incline to think the commonwealth entitled to judgment; for 1 do not think Hite ever had such possession of Jones’s lot, as to entitle him to hold it against the commonwealth, or Jones’s heirs, if such should hereafter appear. If I rightly understand his title, he claims 200 acres, and only 200 acres, under German, who was entitled to lot 47, according to the division of 177S, which covered what is, or a part of what is, now lots 45 and 61. Although, therefore, in point of fact, he was in possession of lot 47, yet he claimed the land under German, not under Jones; and when by the new arrangement or division, lot 47 was removed to another part of the Savage grant, and what had been lot 47 was turned into lots 45 and 61, Hite’s rights under German were instantly transferred according to the new allotment, and what had been lot 47 became the lot of Jones or those claiming his rights, subject, it is true, to any just claim for improvements. Hite, therefore, had neither title, nor ^possession with claim of title, to lot 45, after the new arrangement, and at the date of the inquest of escheat. He had at most, only an incumbrance, which he afterwards enforced b3 an ex parte, and therefore irregular, proceeding; and even this was not perfected until the sale of the marshal to him in November 1823, at the earliest; which was three years after the inquest found.

Upon the whole, I am of opinion, that the judgment must be reversed, the verdict set aside, and the cause sent back to the circuit superiour court for a venire de novo.

CABEEE and BROCKENBROUGH, J., concurred.

Judgment entered by this court — That the special verdict found in this cause, is defective and imperfect in the following respects, 1. in not finding, that the inquisition of escheat ever was duly returned according to law; 2. in not finding the grant to Savage and others, so as to enable the court to determine, whether the grantees held as joint tenants or as tenants in common; 3. in not finding, whether Jones died before or after the 1st January 1787, so as to enable the court to determine, whether his title (if he originally held as joint tenant with the other grantees) survived to them, or escheated to the commonwealth; and 4. in not finding the title of Hite with sufficient precision: and that the verdict is too imperfect to enable the court to give judgment thereon, according to the truth and right of the case: and that the judgment of the circuit superiour court is erroneous. Therefore, judgment reversed, verdict set aside, cause remanded, and venire de novo ■directed.  