
    *Cline’s Heirs v. Catron.
    June Term, 1872,
    Wytheville.
    Absent, Moncure, P. and Staples, J.
    
    i. Land Patents—Interlock.—C is in possession of a tract of land under a settlement in 1771, the settlement right confirmed to him by the commissioners of the district in September 1782, and which was surveyed in April 1783, and he lives upon and cultivates a part of the land, and obtains a patent for it in March 1799. In July 1796, W obtained a patent for a tract of land, which covers a part of the tract held by C: butC’s cleared land is outside of the interlock, which is in forest: W not knowing that his patent covers any part of the land held by C under his settlement right. Held:
    i. Same—Same.—That C not having prevented the issue of the patent by caveat, and W not having known that his patent covered any part of the land so claimed by 0. the patent of W is valid, and vests in him the legal title.
    2. Same—Same-Adverse Possession of Interlock.— The actual possession by C outside of the interlock. does not constitute an adversary possession by C. of the land within the interlock, so as to require W to enter upon and take actual possession of it, in order to give him possession under his patent.
    3. Same—Action to Recover.—If C, on obtaining his patent in March 1799, entered on the land and ousted W, it was not necessary for W to enter upon and dispossess C, before he could maintain an action to recover the land.
    2. Rights Acquired by Order of Council on No Higher Footing Than Those under Land-Office Treasury Warrant.—By an order of council of the 12th of June 1749. confirmed by a decree of the Court of Appeals in 1783. 800.000 acres of land was granted to the Loyal Company, and was surveyed in 1774. The rights under this grant, acquired by entry and survey, stand upon no higher footing than rights acquired by entry and survey under a land-office treasury warrant; and in both cases, until patented, the lands are waste and unappropriated, and liable to location by other parties.
    3. Evidence—Surveyor’s Report.—In an action to try the title to !land. an order is made directing the surveyor to go upon it, and make a survey and report. This he *does; but before the cause comes on for trial, the surveyor dies. His report is competent evidence.
    4. Same—Family Tradition Incompetent to Prove or Disprove Title.—Though family traditions are admissible in evidence upon questions of boundary, they are not admissible to prove or disprove a title.
    5. Sale of Land to a Committee of an Idiot Cannot Be Impeached Collaterally—Decree Valid Until Reversed.— A bill is filed by S, a committee of two idiots, for the sale of their land, and there is a decree for the sale, and a sale: and the report of the marshal of the court shows that the land was purchased by S, the committee. This report is confirmed, and the marshalls directed to convey the land to S: which is done. S afterwards sells and conveys the land to C, who sues to recover the land. Though the decree confirming the sale to S was erroneous, and S is forbid by the statute to purchase or own the land during the incompetency of the idiots, yet the decree is not void but voidable, and cannot be impeached collaterally, and until it is reversed, must be held to be valid, and as passing a good title to S.
    6. Possession—Must Be Adverse.—The possession which would, under the former law, render a conveyance by a party out of possession, inoperative, must have been an adversary possession.
    7. Same.—What the kind of possession which wi]] sustain the defense of adversary possession, against a plaintiff claiming under a patent.
    This was an action of trespass quare clausum fregit, in the Circuit court of Wythe county, brought in March 1861, by John Catron against Jacob Cline and others.
    Upon the trial the plaintiff introduced in evidence a patent from the commonwealth to Michael Walters for eighty-seven acres of land, dated the 8th day of July 1796. He then introduced a deed, dated the 17th day of February 1830, from five of the children and heirs of Walters to himself, by which, in consideration of sixty-three dollars, they convey to the plaintiff their undivided interest in said tract of land. And he then offered in evidence the report and plat of the surveyor of the county made under an order in the cause; but the surveyor having died after making his report and before the trial, the defendants objected to this report as evidence to prove any fact or statement as ascertained by the surveyor. But the court overruled the objection, and admitted the evidence, not as conclusive, but prima facie only ; and the defendants excepted. *The plaintiff then offered in evidence the record of a suit *n the Superior court of chancery, held at Wythe in 1828, brought by Leonard Straw, jr., committee of Fmanuel Walters and Sally Walters, idiots, for the sale of their undivided interest in the lands of their father, Michael Walters, deceased: in which suit there was a decree for a sale of said undivided interests by the marshal of the court, and a report'by the marshal of the sale thereof to Leonard Straw, jr., the committee of the idiots: and this report was confirmed, and the marshal was directed to convey the said undivided interests to said Straw. With this record the plaintiff offered in evidence the deed from the marshal to Leonard Straw, jr., dated December 4th, 1828, and a deed from Straw to the plaintiff, bearing date the 12th of January 1830, conveying the same interests. To the admission of the record and deeds as evidence the defendants objected; but the court overruled the objection ; and the defendants excepted.
    The plaintiff, having introduced the evidence hereinbefore mentioned, gave evidence to prove that he had cleared, entered upon and cultivated land on that tract of eighty-seven acres (but not on the land in dispute), after he had acquired title thereto.
    The defendants offered in evidence a patent and certificate to Nicholas Cline. The patent bore date the 28th of March 1799, and recites that, by virtue of a certificate in right of settlement given by the- commissioners for adjusting claims for unpatented lands, &c., there was granted to said Cline a tract of land containing four hun* dred acres by survey bearing date the 13th of April 1783. The certificate of the commissioners bears date the 6th day of September 1786, and states that the assignee, &c., was entitled to the same by real settlement made in 1771.
    The defendants also introduced in evidence another patent to Nicholas Cline for four hundred and fourteen *acres of land, which bore date the 26th of February 1828. This patent was founded on a survey made on the 8th of December 1774, and the land was described to be part of an order of council granted to the Royal Company to take up and survey eight hundred thousand acres, which order of council was established and confirmed by a decree of the Court of Appeals made on the 2d of May 1783.
    The defendants then offered evidence to prove that Nicholas Cline lived on the land embraced in his patents, from the time of the Indian war, and had improved parts of it; that said lands had continued in the possession of said Cline and his heirs to the present time; and that the defendants were some of these heirs: and that there was no land cleared on the land in dispute in this cause, except about half an acre adjoining the old cleared lands of the Clines, which half acre was cleared about the beginning of the late war between the North and the South. They then introduced as a witness Henry Grubb, who stated that he was the grandson of Michael Walters, the patentee of the tract of eighty-seven acres, his mother being one of the daughters of said Walters, and that the witness inherited the interest of his mother in said tract; that after the plaintiff had purchased 'his interest in said land, it was divided by and between the plaintiff, Joseph Colvin, and the witness, and no portion of the land in controversy in this cause was divided; the heirs of the Walters claimed no title in it. The defendant’s counsel then asked the witness, ‘ ‘What was the family tradition as to Michael Walters, the patentee, claiming ■or disclaiming title to the land in controversy in this cause?” To this question the plaintiff objected; and the court sustained the objection; and the defendant again excepted.
    According to the report and plat of the ■surveyor the land in dispute is about thirty-two and a half acres. It is included in the patent to Walters; a small strip of it is included in the patent to Cline for four hundred and fourteen *acres; and it is all included in his patent for 400 acres; both of his patents including to a large extent the same land. And the report -showed that a part of Cline’s land outside the interlock had been cleared and cultivated.
    After the foregoing evidence had been introduced the plaintiff proved the trespass by the defendants, and that the land was an interlock; and that neither the defendants, nor those under whom they claim, had ever had actual possession of any portion of said interlock, but the same was always a forest until about the time or just before the institution of this suit, when about half an acre of it was cleared by the defendants. The defendants proved that Michael Walters, one of the heirs of the patentee, had said he had no interest in the land in controversy, and admitted it to be the land of the Clines; and said his father had never claimed it, and admitted it to be the Clines ; that Michael Walters, Joseph Colvin and Henry Grubb, as part of the heirs of Michael Walters, had refused to divide the land in controversy, because they considered it was the land of Cline: that plaintiff after his purchase, had said that the Walters patent covered the land; but he supposed the Clines would hold the land; and pointed out to the witness a corner, from which witness supposed the land in controversy would fall to Cline’s heirs. And thereupon the defendants moved the court to give to the jury the following instructions.
    1st. If the jury believe from the evidence, that the land in controversy is embraced in the limits of the patent issued to Michael Walters, on the 8th day of July 1796; and that a part of the land is embraced in the limits of the patent issued to Nicholas Cline on the 28th day of March 1799; and if the jury shall further believe from the evidence, that the said Nicholas Cline, or those under whom he claimed, had been in possession of the tract of four hundred acres of land patented to him on the 28th day of March 1799, claiming the same under a real settlement *made in 1771; and that the same was confirmed to him by the certificate of settlement right for the District of Washington and Montgomery, on the 6th day of September 1782, . and was surveyed on the 30th day of April 1783: and if the jury sh-’ll further believe that the said Nicholas Cline continued in possession of the said four hundred acres of land, living on, clearing and cultivating the same, until his patent therefor issued on the said 28th of March 1799, and he and his heirs have continued living on the said tract and cultivating the same until the present time: and if the jury shall further believe, that when the patent issued to Michael Walters on the 8th day of July 1796, the eighty-seven acres embraced in the said patent was in a state of nature, and no one had cleared or cultivated any portion thereof, and so continued in a state of nature until after the 28th of March 1799, when the patent for four hundred acres issued to Nicholas Cline; that then the possession of Nicholas Cline under the said patent extended to the exterior boundaries of the said patent, and as to the conflict between the patents of the said Walters and the said Cline, the possession of said Cline became an adversary possession to the possession of said Walters, and ousted the constructive seizin of the said Walters; unless the jury, from the evidence, shall believe said Wallace had actual possession of the eighty-seven acres by clearing and cultivating the same.
    2d. And if the jury shall further believe from the evidence, that a portion of the land in controversy is embraced in the patent to Walters, and also in the patent for four hundred and fourteen acres issued to Nicholas Cline, on the 23d of February 1828; and if they shall further believe that the said four hundred and fourteen acres of land so patented to said Cline is part of the eight hundred thousand acres of land granted to the Doyal Company, by order of council, on the 12th of June 1749, and the same was surveyed on the 8th day *of December 1774, and was confirmed to the said Doyal Company by a decree of the Court of Appeals of 1783; and that at the time of the emanation of the said patent to Michael Walters, and for some j-ears previous thereto, the said Cline was in actual possession of the said land, claiming the ownership, clearing and using the same as his own, and so continued in possession of the said four hundred and fourteen acres until his patent therefor issued in 1828; then after the decree of the Court of Appeals in 1783 the said tract of four hundred and fourteen acres was not waste and unappropriated lands, and that the seizin and possession of said Cline relates back to the said decree in 1783; and as to the said land, the patent of the said Walters is to be regarded as a junior patent, and confers no constructive seizin or possession.
    3d. If the jury shall believe from the evidence, the constructive seizin of Walters to the land within the boundary of Cline’s patent was ousted on and after the 28th of March 1799, and immediately thereafter, then it was necessary for Walters, or those claiming under him, to enter on the land in controversy and dispossess the said Cline before they could maintain any action therefor.
    4th. If the jury shall believe from the evidence that, on the---of- 18--, when--- conveyed his interest in the eighty-seven acre tract to the plaintiff, the land in controversy was in the adverse possession of the defendant, then the deed was inoperative and void, conveyed no interest to the plaintiff to the land in controversy, and he could maintain no action therefor.
    5th. The fifth instruction is the same as the fourth, referring to another deed.
    The plaintiff objected to the instructions asked for by the defendants, and in lieu thereof, asked for four instructions on their part.
    1st. If the jury shall believe that the plaintiff has the elder patent to the land in controversy, and that the defendants, *within five years next before the suit was instituted, entered upon said lands and trespassed thereon, by themselves or their agents, in the cutting of timber, they must find for the plaintiff, unless the defendants shall have shown a continual, actual and adversary possession in themselves, or those under whom they claim, of the land in controversy, for a period of fifteen years prior to the suing out of the writ in this cause.
    2d. That possession, to avail the defendants, must have been an actual, continual, adversary possession of the whole or a part of the land in controversy for the period of fifteen years aforesaid; and that the occupancy and improvement by the defendants of land outside the interlock is not a sufficient possession to defeat this action.
    3d. That whilst patented land remain uncleared, or in a state of nature, they are not susceptible of adversary possession against the elder patentee, unless by acts of ownership affecting a change in their condition.
    4th. If a title to the land in controversy was vested in the plaintiff by the deeds and patent under which he claims, then that such title could not be divested out of him by any parol or verbal disclaimer by him of such title; but only by deed executed in the manner prescribed by law.
    The court refused to give the first, second and third instructions asked for by the defendants, and refused to give the fourth and fifth in the form asked for by them, but modified them by inserting the word “actual” before adverse “possession,” and gave them thus modified. And the court gave the instructions asked for by the plaintiff. To all of which the defendant excepted.
    There was a verdict and judgment for the plaintiff; and the defendants obtained a supersedeas to the judgment from a judge of the District court of Appeals at Abingdon, where the judgment was affirmed; and then they brought the case to this court.
    Baxter, Crockett & Blair, for the appellants, insisted:
    *181:. That the deeds from the marshal to Straw, and from Straw to the plaintiff, were absolutely null and void, and passed no title:
    1. Because Straw, having been the committee of the idiots who brought the suit for the sale of the land of the idiots, the statute expressly forbids that he should become the purchaser, or in any manner whatever become the owner of the land during the incapacity of the idiots. They insisted that the only authority for selling the land of an idiot at the suit of the committee was 1 Rev. Code of 1819, ch. 109, ‘i 22, p. 417; Faulkner v. Davis, 18 Gratt. 651; Pierce v. Trigg, 10 Deigh, 406; and this act prescribed that the proceedings should be in all respects as in the case of a suit by a guardian for the sale of infants’ lauds. 1 Rev. Code of 1819, ch. 138.
    2. That the jurisdiction to sell the lands of an idiot is a special statutory jurisdiction ; and the authority must be strictly pursued. And they pointed out various objections to the proceedings in the suit in which the sale was ordered. They referred to vol. 1, part 2, of Smith’s Dead. Cas. p. 1101, note, to Crepps v. Durden, and authorities there cited; Ramson v. Williams, 2 Wall. U. S. R. 313; Hollins v. Patterson, 6 Leigh, 457; Bedinger v. Commonwealth, 3 Call, 399; Delany v. Goddin, 12 Gratt. 266; Taylor v. Stringer, 1 Gratt. 158; Thatcher v. Powell, 6 Wheat. U. S. R. 119.
    2d. The court erred in excluding the evidence of the family tradition as to Michael Walters claiming or disclaiming title to the land. They referred to 1 Greenl. Evi., part 2, ch. 5, l 109, p. 186; 1 Philips’ Evi., edi. of 1868, ch. 8, ? 10, and note; Harriman v. Brown, 8 Leigh, 697; Wardens v. Hagan, 3 Gratt. 315; Anderson v. Harvey’s heirs, 10 Gratt. 386; Hale v. Marshall, 14 Gratt. 489; Shanks v. Lancaster, 5 Gratt. 110; Flanagan v. Grimmet, 10 Gratt. 421; Robinet v. Preston’s heirs, 4 Gratt. 141.
    3d. That the court should have given the first instruction *asked for by the defendants. Clay v. White, 1 Munf. 162; Green v. Liter, 8Cranch, U. S. R. 229; Walden v. Gratz, 1 Wheat. U. S. R. 292; Taylor v. Horde, 2 Smith’s Lead. Cas. 520, 560; Taylor v. Burnsides, 1 Gratt. 165; Overton’s heirs v. Davisson, Id. 211; Anderson v. Harvey’s heirs, 10 Gratt. 386; Shanks v. Lancaster, 5 Gratt. 110; Elannagan v. Grimmet, 10 Gratt. 421; Koinner v. Rankin’s heirs, 11 Gratt. 420; Robinett v. Preston’s heirs, 4 Gratt. 141; Hale v. Marshall, 14 Gratt. 489; White v. Jones, 1 Wash. 116; 1 Rev. Code of 1819, p. 329.
    3d. The court erred in refusing to give the third instruction asked for by the defendants, because upon' the evidence the jury had the right to find the ouster of Walters by Cline on and after, or before the 28th of March 1799; and then an entry was necessary to bar the right of Cline’s heirs. The ruling of the court prevented the jury from considering the question of ouster and its effect.
    4th. That the court erred in refusing to give the fourth and fifth instructions asked for by the defendants. Though in blank they were given with an amendment by the court, and they obviously relate to the deeds of Michael Walters and others, and of Straws, to the plaintiff. Chapman v. Wilson, 1 Rob. R. 285. And by comparing these, as modified, with the four instructions given on the motion of the plaintiff, it will be seen that the word “actual,” prefixed to adverse possession, was intended to mean the same thing as pedis positio, or seating, clearing and cultivation.
    5th. That the court erred in giving the four instructions asked for by' the plaintiff, because they confine the whole case' to the comparison of the dates of Walters’ and Cline’s patents, unless they believed that Cline and his. heirs had a pedis positio in the interlock by clearing and cultivation; and shut out' from the jury the effect of Cline’s contiguous settlement, the conduct of the parties, *and the other facts in proof, all the considerations proper to be discussed and presumed from their evidence and the relative equities of the parties, and they might mislead the jury as to the issues and evidence in the cause.
    Walker and Kent, for the appellee:
    1. The court did not err in permitting the report of the • surveyor to go to the jury as prima facie evidence of its contents. 1 Gratt., 115; 1 Starkie (marginal), 298-’9; 8 Heigh, 711; 1 Phil. Evid. (top), 500, and pages following; 2 Rand. 87.
    2. The deeds from Smith to Straw and from Straw to Catron were proper evidence, as showing the different links in the appellee’s chain of title; and the report of the commissioner, and the decree in the cause describing the land with sufficient certainty, the record cannot be questioned by a stranger in a collateral controversy. Smith v. Chapman, 10 Gratt. 445, 453-’6, 465; Cox v. Thomas, 9 Gratt. 323-’37-’8; Baylor’s lessee v. De Jarnette, 13 Gratt. 152; Ballard and others v. Thomas & Ammen, 19 Gratt. 20, 21-’2; Voorhees v. Bank U. S., 10 Pet. U. S. R. 49; Florentine v. Barton, 2 Wall. U. S. R. 210; Fisher v. Bassett, 9 Leigh, 119, 131; 6 Pet. U. S. R. 279; 2 How. U. S. R. 338, 40, 41; 11 Serg. & Rawl. 426 ; 3 Pet. U. S. R. 207; 2 Id. 165; 2 How. U. S. R. 342 ; 5 Gratt. 157; 2 Wash. 116; 5 Munf. 7.
    3. There can be no parol disclaimer of title to land; but the disclaimer must be in writing. 1 Rob. 105; 1 Starkie, 33, 34; 1 Gratt. 177, 178.
    4. The patent of the Commonwealth passes title to waste and unappropriated lands to the grantee. The effect of the grant is to confer seizin in law to all the lands embraced in the patent; and the party holding under the senior grant is not ousted of this constructive seizin by the junior patentee, except by an actual entry *upon the lands, accompanied bj- acts of ownership, open, notorious and habitual.
    5 Heigh, 651 to 676; 1 Gratt. 188, 191 to ’201; same, 223-’4; 11 Gratt. 600.
    5. The land in controversy being embraced within an interlock and the patent of Walters being the oldest; and both Walters and Cline having settled outside the interlock, the settlement of Cline gave him title to no part of the interlock unless he entered on the lands embraced within the interlock, and held actual possession of the same for fifteen years before appellee’s suit was brought. Vide authorities cited above in 11 Gratt., 600.
    The record shows the land in controversy to have been in a state of nature.
    6. The court properly refused appellants third instruction, because it was irrelevant, obscure and calculated to mislead the jury.
    Vide authorities cited above in 11 Gratt. 600.
    
      
      Jtjdge Staples had been counsel in the cause.
    
    
      
       Adverse Possession of Interlock.—As to adverse possession of interlock, see 2 Minor’s Inst. (4th Ed.) 581 et sea•; 3 Va. Law Beg. 763. 843; 4 Va. Law Beg. 1, 8, 138. 557,182.
      See Turpin v. Saunders, 32 Gratt. 38, where Staples, J.. in delivering the opinion of the court, discusses the doctrine laid down in the principal case. See also, a note to this same case as to an error in the reported opinion of the principal case.
      The principal case is cited in Hollingsworth v. Sherman, 81 Va. 674, as authority for the proposition that a tenant cannot sustain his defence of continued adverse possession, if, within the period of limitations, the premises have been abandoned by him or those under whom he claims. See Andrews v. Roseland Iron, etc., Co., 89 Va. 395, 16 S. E. Rep. 252; Ilsley v. Wilson, 42 W. Va. 757, 26 S. E. Rep. 554; Garrett v. Ramsey, 26 W. Va. 355 et seq.
      
    
    
      
      Same Family Tradition Incompetent to Prove or Disprove Title.—See High v. Pancake, 42 W. Va. 602, 26 S. E. Rep. 536.
    
    
      
      Sale of Land to a Committee of an idiot Cannot Be Impeached Collaterally—See Spilman v. Johnson, 27 Gratt. 41.
      Decree Valid Until Reversed.—See Lancaster v. Wilson, 27 Gratt 630.
    
   ANDERSON, J.

delivered the opinion of the court.

The plaintiffs in error claim to hold the land in controversy by two grants of the commonwealth to their ancestor, Nicholas Cline. One for 400 acres, bearing date March 28, 1799, which is founded upon a settlement right, running back to 1771 and confirmed on the 6th day of September 1782, by a certificate of the commissioners for the district of Montgomery and Washington, and surveyed April 30th, 1783. The other patent is for 414 acres, bears date February 6, 1828, and is founded upon a survey made the 8th day of December 1774, by virtue of an order of council granted to the Boyal Company to take up and survey 800,000 acres of land, which was established and confirmed by a decree of the Court of Appeals on the 2d day of May 1783. The boundaries of these patents are not coincident, yet the large body of the land covered by both is identical.

Nicholas Cline seems to have been one of those hardy ^'adventurers who settled this country when it was a wilderness frontier, before whose advances the roving occupation of hostile savages receded, and gave place to the introduction of a Christian civilization. He settled upon the lands for which he afterwards obtained patents as aforesaid, at least as early as 1771, and lived upon them, cultivating and improving them until his death. They then descended to his heirs, who, or some of whom, have held them in possession ever since.

In 1796, one Michael Watters, or Walters, under whom the defendant in error claims the land in controversy, obtained a commonwealth’s grant for eighty-seven acres of land, which is founded upon a survey made by virtue of a land office treasury warrant on the 8th day of October 1794. In describing the boundaries of the land, his patent calls for a corner of N. Cline’s land, two white oaks, and thence running with his line. It appears from the survey made in this cause that the corner, two white oaks, called for is a corner of Cline’s survey and patent of 414 acres, and that the line run from that corner is nearly coincident with the line of Cline’s said survey, but does not at all correspond with the line of Cline’s 400 acre survey, but cuts off from it a lot of land, which comprehends nearly all the land in controversy, which is described by the survey in the cause as containing thirty-two and a half acres.

At the date of Walters’ patent, Cline had a clear, equitable right to the land in controversy, and could doubtless have prevented the issuing of a grant to Walters for it if he had filed a caveat. Having failed to do so, the legal title became vested in Walters by the commonwealth’s grant, unless the equitable right of Cline was of such a character as exempted his land from a location and grant under a land office treasury warrant, as waste and unappropriated lands. But in French v. Loyal Company, 5 Leigh, 627, this court held that such rights were upon no higher footing than rights acquired *by entry and survey under a land office treasury warrant, and that in both cases, until patented, the lands were waste and unappropriated, and liable to location by others. Cabell, J. says that the same policy applied to both classes of claims, and both should be subject to the same law, making the lands liable in both cases to subsequent location. “This liability, while it advanced the public interest, would do no injury to the diligent prior claimant, for his right might be always secured by a resort to the court of caveat— tribunals wisely provided for the adjustment of conflicting claims to land before the emanation of grants.” Cline, then, not having resorted to his caveat, the legal title became vested in Walters by the emanation of the commonwealth’s grant. And even a court of chancery could give him no relief against the patent, unless he had been prevented from filing a caveat by fraud, accident or mistake, or unless Walters, who got the first patent, had been guilty of actual fraud. “And he is guilty of actual fraud who, knowing another’s prior equity, proceeds to get a grant for the land.” Supra, p. 648, and McClung v. Hughes, 5 Rand. 453.

There is nothing in the record to show that Walters, in making the location and getting a patent, had been guilty of any fraud. On the contrary, it is inferable from the calls of the patent that he did not intend to invade the rights of Cline, as he calls for his corner and runs with his line; which is the corner and line of Cline’s survey of 414 acres, and which, we think, is the true boundary of Walters’ patent. It does not appear that he knew of Cline having any other survey. But from what does appear, it is fair to presume that he was entirety ignorant of Cline’s survey of 400 acres.

The legal title being vested in Walters to the land in controversy, by the elder patent, the defendants in the court below relied upon an adversary possession in *themselves and their ancestor, Nathaniel Cline, to defeat the better title. It is a well settled principle that there can be no adversary possession against the commonwealth. But a junior patentee may show that he had possession of the land in controversy prior to the emanation of his patent, under a claim of title, legal or equitable, good or bad; and also, in order to explain the character of his possession anterior to the emanation of the elder patent. But his possession cannot be adversary until the emanation of this elder patent, for it is consistent with the rights of the commonwealth, in whom the legal title resides. After the title passes from the commonwealth to the patentee it instanter becomes adverse to him. Shanks and others v. Lancaster, 5 Gratt. 110; Koinner v. Rankin’s heirs, 11 Gratt. 420. But it must be an actual and exclusive possession. To be actual, the visible occupancy and improvement of a part of the land in controversy is an actual possession of the whole to the limits of the claim under which it is held, and ousts or intercepts the legal seizin incident to the patent. Such possession of the junior patentee is exclusive, unless the elder patentee enters and takes actual possession of a part of the land in controversy. In that case the possession of the junior patentee will be restricted to his actual close.

It is now also well settled, that where there is an interference of the patents, so that they lap or interlock, the occupation or residence of the junior patentee upon a part of his tract outside of the interlock does not give him possession of that part of his tract which is embraced within the limits of the elder patent, but his possession is restricted by the boundary of the elder patent. But if he has an actual occupation and improvement of- a part of the interlock, and the elder patentee has actual possession of no part of it, the actual possession of the junior patentee is co-extensive with the limits of his ^patent, and is exclusive and adversary, and if continued uninterruptedly for the period of limitation, defeats the elder patentee’s right of entry, or his better title, as the case may be. Taylor’s devisees v. Burnsides, 1 Gratt. 165; Overton’s heirs v. Davisson, Id. 211; French v. Loyal Company, 5 Leigh, 627; Koinner v. Rankin’s heirs, 11 Gratt. 420. These being the well established principles of law as applicable to this case, we are of opinion that the Circuit court did not err in refusing to give the first and second instructions prayed by the defendants, as set out in their fourth bill of exceptions.

The court is of opinion that there is no error in the refusal of the court to give the third instruction prayed for by the defendants, because in the case supposed the Walters right of entry would not have been tolled, and he could have had recourse to his writ or action of ejectment.

The fourth instruction, which was given, we think is correct. If the disseisee before making entry, die intestate, and his heirs make a conveyance of the premises, at a time when they are not in possession thereof, as the law then was, their conveyance will pass nothing. But it is not every possession in another which will render a convey-, anee void. To have this effect it must be adverse. We think the instruction good without inserting the word “actual.” But the insertion of that word did not vitiate it or change its meaning.

We are of opinion also, that there is no error in the rulings of the court, to which the first and second bills of exception apply. The first was not insisted on in argument; and as to the third, whilst reputation and tradition are admissible in evidence, upon questions of boundary, we know of no case, where it has been admitted to prove or disprove title; and to allow it, we think, would be to violate well established principles of evidence.

The question raised, by defendant’s second bill of exceptions, *is one of greater difficulty. Did the deed of the marshal pass the title, of the idiot heirs of Michael Walters, to Leonard Straw? The conveyance was made by authority of, and in obedience to, a decree of the Superior court of Chancery, which was a court of general jurisdiction, and by statute had jurisdiction of the subject. But the sale was made to one whom the statute expressly declares, 1 ‘shall not be admitted a purchaser, either by himself, or by another, or become the owner of the land, in any manner,” during the period of the disability of the heir, or devisee. It is a plain error of the chancellor, and is apparent upon the decree, and the deed made in pursuance of it.

In Cox & al. v. Thomas’ adm’x, 9 Gratt., 323, 326, Judge Allen says, “If the court has cognizance of the cause, advantage cannot be taken of an erroneous judgment collaterally; for although the error be apparent, the judgment remains in force until reversed.” And cites Drury’s case, 8 Coke, 141b, and Tarlton v. Fisher, Doug. R. 671. And again, in commenting on Prigg v. Adams, 2 Salk. R. 674, he says “the principle of that case is decisive of this. There, although the act of Parliament declared the judgment void, yet as a court of competent jurisdiction had rendered it, though the error appeared on its face, it could be corrected only in an appellate tribunal.” The same principle is affirmed in the case of Fisher v. Bassett, 9 Leigh, 119. From these decisions, and others which might be cited both in this court, and in the United States Supreme court, it would seem, that although the conveyance was made to one whom the statute forbids to be admitted a purchaser, and incapacitates to become the owner during the period of disability, it being authorized by the decree of a court of competent jurisdiction, the deed is not void, but only voidable; and is in force until set aside, by a reversal of the decree, by authority of which the conveyance was made.

This cannot be done collaterally, but 395 only in the same court *which pronounced the decree, by review; or in a proceeding before an appellate tribunal, to revise or reverse. We are, therefore, of opinion that there is no error in the ruling of the Circuit court on this point.

It now only remains to say, that for reasons already assigned, which need not be here repeated, we think the instructions given by the court to the jury, on the motion of the defendant in error, are substantially correct. Upon the whole, we are of opinion, to affirm the judgment of the District court.

Judgment affirmed.  