
    Young v. Gooch and Brown.
    April, 1831.
    (Absent Cabell and Coalter, ,J.)
    Rea! Estate — Contract for Purchase of — Ratification by Commonwealth — What Constitutes. — A county court, empowered by act of assembly in 1784, to select a place on which to establish aii inspection of hemp and hemp warehouses, and if the proprietor of the ground will not erect the warehouses, to cause them to be erected at public expense, but not empowered by the law to purchase the ground itself for the commonwealth, contracts with the proprietor to purchase the ground itself, and orders payment of the purchase money thereof out of the treasury, and the same is paid to the proprietor accordingly: the commonwealth holds the ground till 17!>7, when the inspection is discontinued, and thenceforth till 1816, when an act of assembly Is passed, claiming this ground as the property of the state, putting it under care of the executive, and directing it to be sold: Heed, that the actual holding possession under the contract of the county court, and the assertion of the right of property by the act of 1816, are a ratification of the contract made for the purchase of the ground by the county court, and a sanction of the contract.
    Same — Claim of Land in Possession of Commonwealth —Remedy of Claimant. — If the commonwealth is in actual possession of land, an individual claiming the same, cannot enter upon that possession, but must resort to his petition of right: and, if he enters, and is ousted by actual force, by the officers or agents of the commonwealth, having lawful orders to do the act, he cannot maintain trespass against them
    To a declaration in trespass qnare clausum fregit, by Young against Gooch and Brown, in the circuit court of Henrico, the defendants pleaded, 1. The general issue: 2. A special plea, in substance, that the locus in quo was a lot in Richmond, which was, on the day of the supposed trespass complained of, the property and in the possession of the commonwealth, and so under the superintendance of the*executive; and the plaintiff having, on the same day, unlawfully entered and trespassed on the lot, so being the property and in the possession of the commonwealth, by erecting a fence upon it, and digging the soil, the executive ordered the defendants, who were the lawful officers of the government bound to obey and execute its lawful orders in that behalf, to forewarn the plaintiff from persisting in his said trespass, and if notwithstanding such warning he still persisted, to remove the said fence ; and the defendants gave the plaintiff warning accordingly, and he not regarding the same, and persisting in his said trespass the defendants in pursuance of the order of the executive, as lawfully they might and were bound to do, caused the fence so by him erected, to be pulled down, and the possession of the lot to be retained by the commonwealth, whose property it was, and in whose possession it then was and yet continued ; which was the trespass supposed and complained of in the declaration : and 3. Another special plea varying from the other, in only alleging that the locus in quo was in the lawful possession of the commonwealth, at the time of the trespass complained of, without asserting also that it was the property of the commonwealth. Upon these pleas issues were made up.
    
      At the trial, the pldintiff filed two bills of exceptions, and the defendants filed one, to opinions and instructions of the court given to the jury.
    1. The plaintiff having adduced evidence, that the defendants had forcibly entered upon lot number 194, in Richmond, whereof he claimed the title and possession, and pulled down an enclosure recently put there by him, which was the trespass complained of; the defendants, on their part, shewed an order of the county court of Henrico, made in December 1784, in these words ; “Charles Lewis;, the proprietor of a piece of ground, on which it is intended to erect warehouses for the reception of hemp, in this county, agreeably to the act of assembly, for establishing an inspection *of hemp, appeared in court, and refuged to build the same; whereupon it is ordered that J. Y., R. A., and J. B., or any two of them, be appointed commissioners to let the building of the said warehouses, agreeably to the directions of the said act.” And another order of the same court, made in January 1787, in these words: “Ordered that the treasurer pay to Charles Lewis the sum of .¿145. for the lot number 194, on which the hemp-houses stand, agreeably to the valuations thereof made and returned.” And a receipt of Charles Lewis for the *145. paid him at the treasury, on the 3d April 1787, “for the lot,” according to the order of the county court. And then the defendants adduced evidence to prove, that the lot in question was put into the possession of the commonwealth in 1784, by consent of and contract with Lewis, the former owner ; that a hemp warehouse was built upon it, and a public inspection of hemp there established; that the inspection having in fact gone down in 1797, the warehouses were removed by order of the government in 1801 ; that the lot was always reputed to be public property, and rated as public property on the books of the commissioner of the revenue and by *the assessors of property in Richmond, and had been represented to be so by the plaintiff himself, prior to his taking possession thereof ; and that the commonwealth, through the officers of government, had exercised divers acts of ownership over it from 1809 to 1814. The defendants also gave in evidence an act of assembly concerning the public property in the city of Richmond passed the 28th February 1816. And they announced, that they should rest their defence on the ground, that the commonwealth had been in actual possession of the lot in question from 1784 till the passing of the act of February 1816, and thenceforth, till the plaintiff took the possession and made his fence thereon, which was some short time before the act complained of by him as a trespass ; that the plaintiff had unlawfully intruded upon the lawful possession of the commonwealth ; and that, though the defendants, being and acting as the agents and officers of the commonwealth, had forcibly entered and expelled the plaintiff from the possession of the premises so by him unlawfully acquired, yet the plaintiff could not maintain this action against them, for forcibly expelling him from such his possession acquired by such his unlawful intrusion on the lawful possession of the commonwealth. Whereupon, the plaintiff’s counsel moved the court to instruct the jury, that under the act of May 1784, it was not competent to the county court of Henrico, or for any other officer or functionary of government, to acquire the fee and freehold of the lot in question ; that, under that act, it was only competent to the county court to acquire, for the commonwealth, the use of the lot as a site for a hemp warehouse, and as an easement; that, as the fee and freehold of the lot could not, and no-more than an easement could, be lawfully acquired tjy or for the comm on-wealth, so the fee and freehold *of the lot was not acquired, but only an easement therein, and the commonwealth never had any right to the fee and freehold, but only to the easemenf ; that the commonwealth’s possession necessarily followed and was co-extensive with her right; and that her possession of the easement did nowise divest, but was perfectly compatible with, the possession of the fee and freehold in the original owner of the soil. But the court refused to give this instruction, and gave a charge to the jury, to the following effect: That the act of May 1784 made no provision for acquiring title to the commonwealth of the lands on which the hemp warehouses were to be erected, or for the payment to the proprietor, of either the fee simple value or the annual rent of the lands; but only directed the county courts to select the sites for the warehouses, and if the proprietor refused to erect them, to cause them to be erected at public expense, and to certify the charge for erecting them, to be paid at the treasury; and authorized the inspectors to receive of the exporter or manufacturer Is. 3d. per cwt. of the hemp inspected, and required them to pay one half to the treasurer or to the proprietor; that is (as the court supposed) to the former, in case the warehouses were erected at public expence, or to the latter, if they should erect them. That there was nothing in the statute, however, to prevent the commonwealth from obtaining the possession, not of an easement merely, but of the land itself ; since, though the only object of obtaining the possession, was to erect the warehouses, yet one and perhaps the best mode of effecting that purpose, was to obtain actual possession of the land, as, in case of destruction of the warehouses by accident or time, it might be proper to rebuild them ; and it might be, that the proprietor would refuse to permit the warehouse to be erected, without being paid the fee simple value of the land, and the county court, acting for the commonwealth, might refuse to pay that value, without having possession of the land given to the public: that thus it might be, that the privilege of erecting the warehouses, could not *in fact be exercised, without obtaining possession of the land itself. That there was nothing in the law to inhibit the commonwealth from holding such possession. That possession of the lot in question, might be lawfully acquired by contract with the proprietor. That, if the jury should find from the terms of the bargain appearing from the evidence above stated, or any other that should be adduced, that it was the intention of the proprietor to part with the possession of the lot itself, though he never conveyed, or made any formal contract in writing to convey the same to the commonwealth, and that the agents of the commonwealth, in conformity with that intention, did take possession of the lot in question, the commonwealth ought to be protected in the possession thereof, to the same extent as an individual would be protected, who should have purchased the lot, paid the purchase money, and became possessed thereof. That the actual possession by the commonwealth for a series of years, would enable her to maintain trespass, or to defend herself in an action of trespass. And that the commonwealth, being once in possession of the lot itself, must be presumed to continue in possession, till actual ouster, notwithstanding the removal of the hemp warehouse, and the discontinuance of the hemp inspection on the premises. To this charge the plaintiff filed exceptions.
    2. The plaintiff then offered in evidence, a deed of gift, executed by Charles Lewis and Susan his wife, to their son Gilley Marion Lewis, dated the-day of- 1784, and recorded in Henrico county court on the 6th September 1784, conveying lands to G. M. Lewis, the son, whereof the lot in question was parcel; and a deed of bargain and sale, executed by G. M. Lewis and wife to the plaintiff Young, dated the 26th May 1818, and duly recorded in the same court in June following, conveying the lot number 194, now in question, to the plaintiff. In this last deed there was a special warranty against the bargainor and all claiming under him, and an agreement to the following *effect: That whereas the lot conveyed by the deed, had been therefore in the possession and occupancy of the commonwealth, and used as a hemp warehouse ; and whereas, by force of the provisions of an act of assembly passed in the year 1792, and of the discontinuance of the warehouse and the inspection, the right and title of the lot had reverted to the said G. M. Lewis, and he upon the resumption of his original estate therein, had become bound to pay the sum which had been before received of the commonwealth on account thereof, with interest from the date of the receipt: therefore, the lot was conveyed to Young without general warranty, and for the farther consideration that Young undertook to pay, or otherwise to acquit Lewis, of all sums which might be claimed by the commonwealth, for the purchase money paid for the lot. Upon this, the defendants moved the court to instruct the jury, that, unless the plaintiff shewed, that G. M. Lewis, from April 1787, the date of the receipt of the ,£145. for the lot, by Charles Lewis, from the treasury (as mentioned in the plaintiff’s first bill of exceptions) to May 1818, the date of his deed to Young, made some claim on the commonwealth for that sum of money for which Charles Lewis’s receipt was given on the treasury books, or asserted title to the lot for which the money was so paid, the, jury ought to presume that the money was so paid to Charles Lewis in April 1787, with G. M. Lewis’s assent; and that the deed of G. M. Lewis to the plaintiff, admitted that the money so paid, had been duly paid, and it was not competent to the plaintiff claiming under that deed, to question that fact. But the court, considering these as questions of fact, refused to give such .instructions : and the defendants excepted.
    3. The evidence mentioned in the first two bills of exceptions, having been given to the jury, and other evidence having been adduced by the defendants tending to provea *long possession by the commonwealth of the lot in question, and the evidence of both parties having been gone through, the defendants’ counsel moved the court to instruct the jury, That if they found, that the commonwealth had been, for more than thirty years, in possession of the lot on which the trespass complained of was alleged to have been committed, and that possession continued until the plaintiff’s entry ; and that the plaintiff had entered upon the possession of the commonwealth ; and that the defendants, as officers of government, acting under orders of the executive, had, within four or five days after such entry of the plaintiff, entered upon the lot: then, though the defendants so entered with force and with a multitude of people, but using no more force than was necessary to remove the enclosure recently put there by the plaintiff ; and though the plaintiff’s previous entry had been peaceable, there being then no actual occupant of the premises; and though, at the time of the plaintiff’s entry, he was entitled to the mere right of property therein, and continued entitled to the mere right, at the time he was forcibly turned out of possession by the defendants ; yet the plaintiff could not maintain this action. And the court did so instruct the jury. To which opinion and instruction the plaintiff excepted.
    Verdict and judgment for the defendants ; from which Young appealed to this court.
    Johnson, for the appellant.
    The second bill of exceptions in the record, was filed by the appellees, and is of no other importance now, but that it serves to shew the character of the intrusion of the citizen upon the property claimed by the commonwealth, which her officers thought themselves justified in repelling by actual force, and that it may also serve to introduce and explain the instruction last moved for by the defendants and given by the court. It was no lawless intrusion, but a peaceable entry of the citizen, under a claim of title, or rather under a title, paramount to any right of the commonwealth, upon property which at the time was vacant.
    *The circuit court erred in refusing to give the instructions prayed by the plaintiff, and in the charge which it did give to the jury, stated in the plaintiff’s first bill of exceptions. The only organ of the commonwealth competent to the acquisition of real property, is the legislature; and the acts of the legislature (public or private) the only authority, under which the officers of government can make such acquisition for the state ; and to those acts only can the courts of justice look, to ascertain the nature and extent of the rights acquired. The act of May 1784, certainly, did not authorize the county court of Henrico to purchase the fee and freehold of the lot in question, or the officers of the treasury to pay the purchase money. The public wanted nothing but an easement: the legislature authorized the county court to acquire that, and no more : and no more could in fact be acquired than could lawfully be acquired. It is not certain (as the circuit court seems to have been aware) that the purchase of the fee and freehold of the lot was really intended : it is most probable, indeed, that the purchase of the easement was all that was intended. For though the order of court of January 1787, directs the payment of ^14S. for the lot agreeably to the valuation thereof made and returned ; yet that might as well mean the easement as the property itself ; in like manner as in the common order of a county court to pay the assessed value of a piece of ground, upon which a new road is opened, the language, however general, is always expounded by the law and the purpose, and understood to import a compensation for the easement, not for the property. It may be said, that the price, in this case, was the full fee simple value of the land, and, therefore, the contract was for the land ; but non con-stat that it was the full value ; and if it was, the full value ought to have been paid for an easement like this, which though it left the freehold in the proprietor, was likely to deprive him and his heirs forever of the beneficial use. The full fee simple value of lands upon which public roads are run, is generally paid to the proprietor. But be this as *it may, the contract made by the county court of Henrico with Charles Bewis, ought to be expounded by the law under which the court was acting : the county court ought not to be charged with usurping powers not delegated to it, nor the officers of the treasury suspected of paying money out of the treasury without any appropriation, nor the citizen supposed to have parted with his rights of property beyond what was required for the public service : and, upon the facts then before the court and jury, it ought, in point of law, to have been intended, that the county court meant only to acquire an easement, and Hewis to part with his rights only to that extent, it would be most strange and most mischievous, if a county court opening a new road, should make a general order to pay the proprietor the assessed value of the land, and then that the county should be allowed to claim the land, on the ground that the county had paid for it, and whenever the road should be discontinued, to sell the stripe of land to the highest bidder. In such a case, there can be no doubt, the law would hold that the fee and freehold remained in the proprietor, and would protect his right of property, not only after the discontinuance but during the continuance of the easement. Our case is the same in principle ; the same in fact, except that the proprietor has not to contend with a single county, but with the whole commonwealth. And seeing that this act of May 1784 made no express provision for compensating the owners of the lands selected as sites for the hemp warehouses, in case they declined to build the warehouses, but in that case reserved one half of the fees of inspection to the treasury, leaving the other half to the inspector, it ought surely to be intended, that the county court, sensible of this gross injustice, meant to compensate the owner of the lot in question for taking his property, nolens volens, for public use as an easement, according to the constant and familiar course in like cases, rather than to purchase the property itself without warrant of law. The just legal inference from the facts before the court and jury, was, that the commonwealth *had only acquired the easement. But the circuit court told the jury, if it found from the terms of the bargain, appearing from the evidence then before it, or any other that should be adduced, that it was the intention of the proprietor to part with the lot itself, and that the agents of the commonwealth took possession of it in conformity with that intention , the commonwealth ought to be protected in the possession, to the same extent that an individual would be in a like case ; which certainly means, that the jury might infer a contract for the sale and purchase of the property from the facts then in evidence. The circuit court told the jury, there was nothing in the act of May 1784, to interdict the commonwealth from purchasing the fee and freehold. And surely there was not. But there was nothing in the law to authorize the officers of the commonwealth to make such a purchase; and the constitution forbad them to do it without warrant of law. Then, as to the possession of the commonwealth, that was only co-extensive with her rights : if she cannot be disseized, so neither can she be a disseizor. If she had only an easement, her possession ceased, when the inspection was discontinued. But this charge of the circuit court was erroneous, even upon the principles it assumed : the jury was told, that the actual possession of the commonwealth for a series of years, would enable her to maintain trespass, or to defend herself in an action of trespass. But how can the commonwealth sue or be sued in trespass ?
    The instruction stated in the plaintiff’s last bill of exceptions, supposes this state of facts: that a citizen having the right of property in a parcel of land, and finding the land wholly unoccupied and vacant, enters upon it peaceably, and encloses it; but the commonwealth had previously been in possession of this land for thirty years, and that possession continued till the time of the entry made by the proprietor of the mere right of property : and the jury is told, that, if within four or five days after his entry, the officers of government expel the citizen by actual violence *(not carried farther than the purpose required), the citizen cannot maintain trespass against them. How the law would have been, if the commonwealth, or her agents, or any person claiming under her, had been in actual possession at the time of the citizen’s entry, and he had made a forcible entry, and her officers had peaceably re-entered, is not the question. The reverse of that state of facts was the case before the court. The property was unoccupied and absolutely vacant; the citizen, holding the right of property, entered in peace; the commonwealth’s officers expelled him with actual force. The instruction given by the court contradicts the whole doctrine of forcible entry and ftetainer.
    Stanard and Nicholas, for the appellees.
    Whether the county court of Henrico contracted to purchase for the commonwealth, and Lewis to sell, the lot itself, which had been selected for the site of the hemp inspection in 1784, was a question of fact, which the circuit court left to the jury, upon the evidence the parties had already adduced or might adduce. It was not the province of that court, nor is it of this, to decide upon the sufficiency of the evidence. The jury found the fact.
    It is admitted, that the act of May 1784, did not authorize the county court to purchase the property of the land it selected for the hemp inspection, nor the treasurer to pay the purchase money, if the county court contracted for such purchase. But it cannot be denied, that it was competent to the legislature to have given such authority to the county court and to the treasurer ; and, if it gave not the authority originally, to ratify and sanction the act after it was done. Now the purchase was ratified, on the part of the commonwealth, by the allowance of the payment of the purchase money out of the treasury ; by the taking possession of the subject under the contract of purchase, and the holding thereof, not only during the continuance of the inspection, but long after the inspection had gone down, when the possession could only be referred to a contract and claim of ^complete purchase of the property; by the rating of the lot as public property, on the books of the commissioners of the revenue; and, finally and formally, by the act of 1816, asserting the right of absolute property in this very lot, putting it under the care of the executive, and authorizing the sale of it. And, certainly, Lewis had a right to sell the whole fee and freehold, and he could not object that the county court had not lawful authority to make the purchase, after the commonwealth had claimed under it, and the legislature had ratified and sanctioned it. The act of May 1784 did not authorize the county court to contract for the purchase of the easement, and to order payment of the purchase money thereof out of the treasury, any more than to purchase the property itself : the one was not more without any express warrant of law, than the other would have been. It is obvious from Gilley M. Lewis’s deed to Young, that they were both aware, that the property was in the commonwealth ; for the claim to it is therein stated to be founded on an act of the legislature remitting it to the original owner, upon the condition of his refunding the purchase money paid out of the treasury with interest.
    As to the last instruction, the law is well settled and clear. It is not lawful for a citizen to make entry upon property in possession of the state. Even in the case of an individual, a possession of twenty years takes away the right of entry from the owner of the mere right of property: it gives the right of possession. Young’s entry, therefore, was every way wrongful. And if a person having a right of entry, enters with a strong hand, and forcibly ousts the party wrongfully in possession, the party ousted cannot maintain trespass. That is a pos-sessory remedy. The rightful possessor may oust the wrongdoer by force, without giving him any civil remedy, though he may make himself liable to a criminal prosecution. Argent v. Durrant, 8 T. R. 403; Doe v.Reade, 8 Last, 353; Adams on Eject. 76, 78; Hyatt v. Wood, 4 Johns. Rep. 152.
    *Johnson, in reply,
    insisted that the
    authorities cited did not sustain the proposition contended for ; and that no such principle could be applied, to the case of a party claiming, not under a conveyance, but under a mere verbal contract with another, claiming, in truth, only as the tenant at will or at sufferance of the owner of the legal title, so as to justify the claimant of the equity, in forcibly ousting the owner of the legal estate, from a possession peaceably acquired by him. The commonwealth never had any adversary possession : her possession was only permissive, from the beginning. Neither did the circuit court found its last instruction upon the supposition that her possession was an adversary one, but upon the fact of her possession, simply, whether adverse or otherwise.
    As to the supposed ratification of the purchase made by the county court of tienrico in 1784, by the act of the legislature of February 1816 ; that argument assumes the very point in debate. If the county court contracted only for an easement, if by the law under which it was acting, it could acquire nothing more, it can hardly be pretended, that the act of the legislature in 1816, under pretext of ratifying the act of the court, can convert it into a purchase of the property, and ratify the supposed purchase. The act of February 1816, was probably passed under a misapprehension of the rights of the public : if not, it was an unjust and unconstitutional appropriation to the commonwealth of the property of the citizen.
    
      
      The act of May 1784, ch. 37,11 Hen. stat. at large, p. 412. This statute provided, thatpuhlic warehouses for the reception of hemp, should he kept at or near Richmond, Alexandria and Fredericksburg; and authorized and required the justices of the courts of the counties wherein the inspections were established, to select proper places for the warehouses and inspections; and to cause the owners of the places so selected to he summoned to court, there to declare whether they would undertake to erect good and sufficient warehouses; and if they undertook them, to require hond with surety of them for the due performance of such undertaking; and if they refused to undertake them, then to contract.for the erection of such warehouses, and to certify the charge to the treasurer, who was directed to pay the same &c. The act also established the inspections at the places so to he selected; and authorized the inspectors to receive of the exporter or manufacturer, Is. 3d. per cwt. of hemp inspected, and directed them to account for and pay one half thereof to the treasurer, or to the proprietor, as the case might he. It was agreed on all hands that this act gave no authority to the county court of Henrico, to purchase for the commonwealth, the property of the site it selected for the warehouse. — Note in Original Edition.
    
    
      
      Acts of 1815-16, ch. 14, p. 28, the second section of which authorized the executive to cause to he sold among other public property in Richmond, “a lot which had been marked out as a site upon which to establish a hemp warehouse,” (meaning the lot in question); and the 5th section placed the public property in Richmond, under the care and control of the executive. — Note in Original Edition.
    
    
      
      This was a mistake : there was no such act of assembly ever passed, that I can find. — Note in Original hidition.
    
   CARR, J.

The act of 1784 certainly gave the county courts no power to purchase ground for the erection of the hemp warehouses. It seems from the orders of Henrico court, that, in the commencement, it intended only to have the buildings erected, after the owner of the lot refused to undertake them ; but it is equally clear to me, that after the buildings were put up, the court found it could make no terms with the owner of the lot, short of paying him the full price of the fee; and then it decided (as in common sense *and reason it must) that if the public was to pay the full value, it would buy the lot; and, therefore, in its order of January 1787, it directed the treasurer to pay Lewis ;£145. for the lot, on which the hemp warehouses stand agreeably to the valuation thereof made and returned. This speaks as plainly (to my understanding) as language can, that this money was paid (not for an easement, a privilege, or any thing, but) for the lot itself, which lot had been valued. And on a copy of this order, the treasurer took a receipt for the ;£145. as paid “for the lot.” If in this purchase and payment, the court and the treasurer overstept the limits of their power, it was surely competent to the assembly to ratify their acts ; and the maxim tells us omnis ratihabitio retro-habitur atque mandato asquiparatur. This sanction the legislature has given, I think, 1st, by taking and holding many years under, the purchase, and 2ndly, by the act of 1816, expressly recognizing it as public property then in possession of the commonwealth, putting it under the superintendence of the executive, and directing the sale of it, and the application of the purchase money. It will be remarked, that both instructions of the circuit court, excepted to by the plaintiff, are predicated on the jury’s being satisfied, by the evidence stated or any other evidence, that the commonwealth took possession of the lot, under the contract, and held it till the plaintiff entered upon it; and of this the jury must have been satisfied or they could not have found for the defendants. I feel justified, then, in taking it as proved, that rhe possession of the commonwealth, was of the lot itself, claiming it as public property. And this being so, I am very clear, that the plaintiff could not lawfully enter upon the commonwealth. Such an entry seems utterly incompatible with the idea of sovereignty which belongs to the state.. The citizen'who claims land of which the state is in possession adversely, must resort to his petition of right, and if he enter illegally, upon her, may properly be ousted, as Young was in this case. Thinking, then, that the record shews a case, in which the plaintiff could in no *event be entitled to recover; though I may not in all respects agree with the instructions given to the jury, I am for affirming the judgment.

GREEN, J.

I think that both the instructions of the court excepted to by the plaintiff, were substantially right, but for a reason different from those assigned by the court below.

The case is shortly this : The commonwealth had been in possession of the lot "in question ever since 1784, under a contract made with the proprietor thereof, by the county court of Henrico, acting professedly on behalf of the commonwealth, and which was executed by the payment of the money, the consideration of the contract, by the treasurer, upon the warrant of the auditor. The county court had no authority to make any contract with him in respect to the lot, nor had the auditor and treasurer any authority to pay the money for the commonwealth. And it does not appear, that the proprietor entered into any written contract in respect to the property, or made any conveyance. The legislature, however, ratified and adopted the contract, whatever it was, and the payment of the money, by the act of 1816, claiming it to be a purchase in fee simple, placing this lot, with all the other public property in Richmond, under the care and control of the executive, and directing the lot to be sold. Whether this contract was a sale and purchase of an easement or of the absolute property, was properly left to the jury, upon the evidence. But, whether it was of the one or the other character, the possession of the commonwealth under it, and the ratification of it, and the claim made to hold the lot absolutely by the act of 1816, did not vest any legal title whatever in the commonwealth: that remained in the proprietor. The plaintiff claiming under him, entered upon the property, and in a few days was expelled from it by the defendants acting under the orders of the executive. The commonwealth, however, acquired by this possession, and ratification óf, and claim under,'the contract, all the right which an individual could have acquired *under similar circumstances ; that is, an equitable right to the easement, or to the property itself, as the case might be. Tor, the ratification of a contract made by a stranger in the name of another, confers upon that other all the rights which he would have acquired, if he had been an original party to the contract. And if it be true, that the commonwealth can acquire no right or property but by virtue of some legislative act, that circumstance is found in the act of 1816.

The court below held, that under such circumstances, an individual purchaser, in possession under a contract of sale, having paid the purchase money, might defend his possession against the vendor, or enter upon him if he regained the possession ; and that the commonwealth had the same rights. This was a mistake ; such a possession, not being adverse, even if exceeding twenty years, could not be set up against the legal title in a court of law for any purpose. And even if such a possession of twenty years could operate between individuals, it could not as between the commonwealth and an individual; for she can neither disseise nor be disseised by any one.

There is, however, another principle of the common law, which barred the right of entry of the plaintiff, and justified his expulsion by the public officers entering under the orders of the executive charged by statute with the care and control of this property specifically. There would be an extreme inconvenience, if an individual were allowed, at his own pleasure, to enter- upon the possession of the commonwealth, whenever it happened that property in her possession, was held under a defective title, and he was its legal owner, and to hold her out until the mischief could be remedied by an appropriate legislative act, giving compensation and condemning the property for public use, or till.the question of right could be investigated and settled in a due course of law. If such a right was allowed, in respect to property in the possession of the commonwealth, though not in actual use, it must extend to those cases in which it is in her actual occupation, for purposes indispensible, as the *capitol, barracks, armory, arsenals, and the like. I am confident no government in the world allows the existence of such a right in individuals. It certainly was not allowed by the common law : for, in England, if property is in possession of the king, in his political capacity, without title, the true owner cannot regain the possession by entry, but must resort to his petition. 9 Vin. Abr. Disseisin, D. pi. 19, p. 96. And the same remedy exists here, both as at common law and under our statutes. Upon this ground, I think the instructions were right, and that the judgment should be affirmed.

BROOKE, P.

The commonwealth can acquire, or assert or defend, her rights to property, only through her agents. In this respect the commonwealth holds a position as to her property, and the manner of acquiring it and defending it, somewhat different from a natural person. In the acquirement of land, it is not necessary that the title should pass to her by deed, in the ordinary forms of law, as in the case of a natural person. It has been her practice, justified by the acts of the legislature, to acquire title to land, by the contracts of her agents designated by law for that purpose, and the payment of the purchase money, as in the case before us. That it has been her practice to acquire lands in the mariner stated, is evidenced by the circumstance, that none of the acts of the legislature, authorizing the purchase of land for any public purpose, have provided any other mode by which title to the same was to be acquired ; no regular conveyance of. the title from the vendor - ever being provided for, nor any organ of the government designated to receive it; and the payment of the purchase money having been, it seems, the only requisite to consummate the tiile of the commonwealth, under purchases made by her agents. That the commonwealth holds a position with regard to her title to property, differing from that of a natural person, results from the circumstance, that she can only act by her agents, and is otherwise intirely passive. Thus, no time runs against "her rights. She cannot be a disseisor or a disseisee, though her agents may be both ; and if they act with good faith and under her authority, she makes herself responsible for the consequences. In this view of the rights and condition of the commonwealth, the case before us will be examined.

And the first inquiry is, as to the right of the commonwealth to the lot, on which the trespass complained of is alleged to have been committed by the appellees. On the sound construction of the act of 1784, I think it must be admitted, that the county court of Henrico was not authorized to purchase for the commonwealth, the fee simple interest in the lot in question. But upon the facts of the case, I think it can yet less be doubted, that the court of Henrico did, in fact, purchase for the commonwealth, the fee simple title to the property ; that its purchase was consummated by the payment of the purchase money to Lewis the vendor, by the authorized agents of government for that purpose ; and that, though the county court of Henrico was not authorized by the act of 1784, to make the purchase, yet the purchase was, by those acts, ratified by the commonwealth, and gave her the absolute legal title to the property.

The next inquiry is, as to the character of the possession of the commonwealth, at the time the supposed trespass was committed by the defendants, and into the authority by which they entered upon the lot, and the justification of that entry. As to the character of the possession, the facts are, that in .pursuance of the object of the act of 1784, a warehouse for the inspection of hemp, was erected on the premises ; that there was a regular inspection of hemp established there, and conducted according to law, until about the year 1797, when the inspection was discontinued ; that the warehouse was soon afterwards removed ; and that, after that period, there was no actual occupancy of the lot by any one, until the plaintiff, more than thirty years after the title and possession of the commonwealth accrued, entered upon it, and enclosed it ; a few days after which, the supposed trespass was committed by the entry of the defendants, and ouster of the plaintiff, under the authority of the executive. *Upon these facts, collected from the bills of exceptions filed in the cause, and others that will be noticed, the correctness of the instructions given by the circuit court to the jury, is to be tested. In doing this, I premise, that if the circuit court stated the law upon the case in evidence, to the jury, more unfavorably to the defendants than to the plaintiff, it is not for the latter to object. And that, I think, was clearly the case. Upon a very argumentative statement of the evidence, on which the instruction was asked for by the counsel for the plaintiff, in the first bill of exceptions, the judge instructed the jury, that if they should be of opinion, from the terms of the bargain appearing from the evidence there stated, or any other evidence in the cause, that it was the intention of the proprietor to part with the possession of the lot itself (though he never conveyed the same to the commonwealth, or made any formal contract in writing to convey), and that the agent of the commonwealth, in conformity with that intention, did take possession of the lot itself; the commonwealth ought to be protected in that possession, to the same extent as an individual would be protected who should have purchased the lot, paid his money, and became possessed thereof. This part of the instruction, I think, was most favorable to the plaintiff : the court might have instructed the jury, on the facts stated, that no deed or formal conveyance from the proprietor to the commonwealth, was necessary ; and that the commonwealth, upon the facts admitted as the ground on which the instruction was asked for, had an absolute legal title to the property, and full right to the possession of it, when its agents entered upon it, built the warehouse, and established the inspection of hemp, as an individual would have had under a conveyance from the proprietor,'followed by similar acts, instead of leaving1 it to the jury, whether the proprietor intended to part with the possession, either from the terms of the bargain, or any other evidence. The error in this part of the instruction, then, was favorable to the plaintiff, and cannot be objected to by him. The remainder of the instruction I think was correct enough: it was, that the actual *possession by the commonwealth for a series of years will enable the commonwealth to maintain trespass, or to defend herself in an action of trespass, and further that the commonwealth being once in possession of the lot itself, must be presumed to continue in possession until actual ouster, notwithstanding the removal of the hemp warehouse, and the discontinuance of the inspection on the premises. However this might have been as to an individual (which it is not necessary hereto decide), asno time runs against the commonwealth, this was, as before remarked, correct enough.

The only remaining question is, whether the instruction stated in the third bill of exceptions, which was asked by the defendants, given by the court, and excepted to by the plaintiff, was correct ? That instruction, I think, though in some respects erroneous, was more favorable to the plaintiff than the defendants : it admits a mere right in the property intirely incompatible with the absolute title, which was in the commonwealth ; and, as no time runs against the commonwealth, and as her possession was adverse to the title of G. M. Lewis at the time when the deed from him, under which the plaintiff claims, was executed, that deed passed no title to the plaintiff, even if G. M. Lewis had title; but, in truth, he had no title; and he was sensible he had none, as appears by the deed itself. The title was vested in the commonwealth, in the manner before stated. As to the previous part of the instruction ; it is certainly well settled law, that a party having title to the possession may enter upon it, and defend that entry in an action of trespass against him ; and if so, where he uses no force, he may also justify his entry in an action of trespass, though he may have used force, for which he may be prosecuted criminally. As to the authority of the executive, under the act of 1816, placing the public property in Richmond under its care, and as to the authority of the defendants under the order of the executive; both were left to the jury, and must be presumed to have been proved by proper evidence, or the plaintiff would have excepted to it) The judgment is affirmed.  