
    *Hopkins and Watson v. Ward and Others.
    Decided, Dec. 11th, 1817.
    1. Land Patent — Construction of Terms. — The Commonwealth by Patent granted "a tract of land, con- • taming 70, 202 acres,” (within specified metes and hounds,) by a survey containing a surplus of 42,000 acres, held by titles having legal preference to the warrants and rights upon which the grant was founded. A reservation was therefore made, in favour of those titles, in general terms. It was decided that, under the terms of this Patent, the Grantee was entitled to recover in ejectment all the land within the metes and bounds thereof, except such as the defendants might shew themselves entitled'to, under the said reservation.
    2. Conveyance of Land — Necessity of Possession by Grantor. — A Deed of bargain and sale and release of land, from a person not in possession, to' another in the same predicament, (the land being, at the time, held by a third person with adverse title,) passes nothing, and therefore does not divest the bargainor of his right to recover in Ejectment.
    3. Deed of Trust — Trust Satisfied — Rights of Cestui Que Trust. — A cestuy que trust, after the purposes of the Deed have been satisfied, may maintain Ejectment, upon a demise in his own name, although the legal estate is still in the trustee.
    4. Ejectment — Rights of Piaintiff. — A plaintiff in Ejectment may recover under one or the other of two demises, of the same land, from different persons.
    This was an action of Ejectment in which the fictitious plaintiff Aminadab Seekright declared, with two Counts; in the first, as lessee of Samuel M. Hopkins, and in the second as lessee of James T. Watson ; for the same land in each Count; —viz, “twenty messuages, twenty cottages, seventy thousand two hundred and two acres of wood land, and seventy thousand two hundred and two acres of arable land.”
    At the trial, the plaintiff, to support the issue on his part and under the first Count, offered in evidence a Patent to Samuel M. Hopkins, dated July 2d, 1796, granting a certain tract or parcel of land, containing seventy thousand two hundred and two acres, by survey bearing date the 4th of Nov. 1795, and bounded as in the said Patent set forth, which also contained a clause in these words; — “but it is always to be understood, that the survey, upon which this grant is founded, includes 42,000 acres (exclusive of the above quantity of 70,202 acres,) all of which having a preference by law to the warrants and rights upon which this grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into Grant &c., and this Grant shall be no bar, in either law or equity, to the confirmation of the title, or titles, to the same as before mentioned.”
    The plaintiff prayed the Court to instruct the Jury, that all the land included within the lines mentioned in the said patent, passed thereby to Samuel M. Hopkins, except such part thereof as might be held by prior claims; and that it was incumbent on the defendants to shew that *the lands claimed by them were held by surveys and entries made prior to the emanation of said Grant, and within the exception therein contained, or by patents issued previous to the said 2d day of July 1796, or other title paramount to that of the plaintiff, or derived from his lessors: — which instructions the Court refused to give, but instructed the Jury, “that the plaintiff was only entitled, under the patent above referred to, to 70,202 acres, provided that quantity was not covered by older titles at the time the patent issued to Samuel M. Hopkins; and that, although it should appear to the jury that there were no claims for the 42,000 acres included by the patent, yet the plaintifi could not recover it, as the Commonwealth had only granted to him 70,202 acres, part of the land within the lines mentioned in the patent; and that, should the whole 42,000 acres not be taken by prior claims to that of the plaintiff, in that case the residuum remained to the Commonwealth, but could not be claimed by the plaintiff' by virtue of his patent aforesaid.” To which opinion and instructions, the plaintiff by his Counsel excepted.
    In another Bill of Exceptions, it was stated, that the plaintifi offered in evidence the said Patent, and no other evidence of title upon the first Count in the declaration ; — that the defendant then produced in evidence, a Deed of bargain and sale and release, signed by Oliver Wolcott, Mary Watson, Samuel M. Hopkins and James T. Watson, dated June 2d, 1808, duly recorded, (and set forth in haec verba,) shewing that Hopkins having, by a previous Deed, conveyed the said 70,202 acres to Wolcott, in trust for the benefit of James Watson, father of James T. Watson, the said Oliver Wolcott, with the consent of Hopkins and of Mary Watson widow of James Watson, conveyed and released the same to the said James T. Watson in fee simple. This Deed was introduced to prove that Hopkins had parted with his title and conveyed the same to James T. Watson, and, therefore, that the plaintiff could not recover upon the demise from Hopkins. The plaintiff then insisted, that he was entitled to recover upon the second demise in his declaration ; from James T. Watson ; under the deed from Hopkins to the said Watson. The defendants introduced '"'proof to shew that they were in possession by adverse titles, of parts of the land in the patent mentioned, at the date of the Deed “from Hopkins to James T. Watson. ” Whereupon, the plaintiff moved the Court to instruct the Jury, that, even should it appear that Hopkins was out of possession when he made the Deed “to James T. Watson,” he was entitled to recover on the first demise, from the said Hopkins; that his said deed was no bar to his recovery, and that he, Hopkins, ought to be considered as a trustee for James T. Watson.
    But the Court instructed the Jury, “that, if the Deed from Hopkins conveyed the land to Watson, he had parted with his title, and could not recover upon an Ejectment, though out of possession when he conveyed ; —■2. that, if the Jury, from the evidence, should be satisfied that Hopkins was out of possession of the lands claimed bjr the defendants, and that they were in the actual adverse possession thereof, claiming the same, in that case the deed from Hopkins did not convey such a title to Watson, as would enable him to maintain an Ejectment for the lands thus in the adverse possession of the defendants.” To these opinions of the Court, the plaintiff excepted.
    The Verdict was, “We the Jury find that the plaintiff is entitled to 70,202 acres of land, included in the patent, survey and plat filed in this cause; but whether the claims of the defendants, or either of them, make a part of the plaintiff’s claim and are located within it’s bounds, or fall within the reservation in the patent, we are not satisfied; and therefore we find for the defendants.”
    Judgment being accordingly entered, the plaintiff appealed.
    
      
       Land Patent — Construction of Terms. — In Reusens V. Lawson, 91 Va. 262, 21 S. E. Rep. 347, it is said: "It is true that in that case this court held, in construing a similar grant, that 'under the terms of the patent exhibited in that case, the grantee was entitled to all the land contained within the metes and bounds thereof, subject, however, to the reservation in said patent contained, and that in the action before us the appellant was entitled to recover all the said land, except such as the appellees might show themselves entitled to under the reservation aforesaid. ’ But in the next case which came before the court (Nichols v. Covey, 4 Rand. 366) that view did not prevail; and it was unanimously held that the land embraced in such exception or reservation did not pass at all to the grantees, and that, if the first equitable claimant does not perfect his right to the excepted land, any other person may enter the same as waste or unappropriated, and obtain a grant therefor; that the title to the excepted lands was not in any manner affected by such grant; and that it remained precisely as if no such grant had ever been issued. The construction given in Nichols v. Covey, was followed in Trotter v. Newton, 30 Gratt. 682, and in Carter v. Hagan, 75 Va. 657, and now may be regarded as the settled construction of such grants in this state. The same construction has been given to such grants by the supreme court of the United States and by the courts of last resort in the states of Kentucky and West Virginia. Scott v. Ratliff, 6 Pet. 86; Armstrong v. Morrill, 14 Wall. 120; Halsted v. Buster, 140 U. S. 273; Madison v. Owens, Litt. Sel. Cas. 281: Bryan v. Willard, 21 W. Va. 65; Stockton v. Morris, 39 W. Va. 432,19S. E. Rep. 532.” See principal case also cited on this point in Carter v. Hagan, 75 Va. 559; Bryan v. Willard, 21 W. Va. 72: Stockton v. Morris, 39 W. Va. 434, 437, 447, 19 S. E. Rep. 532.
    
    
      
       Conveyance of Land — Necessity of Possession by Grantor. — An owner of land whose seisin is interrupted by an actual entry and adverse possession of another, cannot, while out of possession, effectively convey such land by deed of bargain and sale. To this point the principal case is cited in Williams v. Snidow, 4 Leigh 17. Conveyance of land to a stranger to the possession, where there is an adverse possession, is in law a nullity and conveys no title. Longworth v. Close, 15 Fed. Cas. 843, citing the principal case.
      But actual possession of the land by the grantor is not indispensable to give effect to his deed, for, if the possession held by another be of a fiduciary character, or if its origin and continuance were such as not to amount to a disseisin except at the election of the owner for the purposes of the remedy, it will not impede the operation of the deed. Sez foot-note to Tabb v. Baird, 3 Call 475: foot-note to Williams v. Snidow, 4 Leigh 14.
    
    
      
       Deed of Trust — Trust Satisfied — Rights of Cestui Que Trust, — Although a cestui Que trust, after the trust is satisfied, may maintain ejectment, that does not deprive the trustee, holding the legal title, of his right to maintain such an action. Hopkins v. Stephens, 2 Rand. 422. 425. citing the principal case. See also, citing the principal case, Hollingsworth v. Sherman, 81 Va. 672; Suttle v. R. F. & P. R. R„ 76 Va. 289. See generally, monographic raofson “Trusts and Trustees” appended to Lee v. Randolph, 2 Hen. &M. 12.
    
    
      
       Ejectment — Rights of Plaintiff. — See generally, monographic note on “Ejectment” appended to Tap-scott v. Cobbs, 11 Gratt. 172. The principal case is cited in See v. Greenlee, 6 Munf. 304.
    
   The cause was argued, December 1st, 1817, by Call for the appellant, no Counsel

appearing for the appellees; after which the Court’s opinion was delivered by

JUDGE ROANE,

as follows:

The Court is of opinion, that, under the terms of the patent exhibited in this case, the grantee was entitled to *all the land contained within the metes and bounds thereof, subject, however, to the reservations in the said patent contained; and that, in the action before us, the appellant was entitled to recover all the said land, except such as the appellees might shew themselves entitled to, under the reservations aforesaid.

Ths Court is also of opinion, that, if the lessor Samuel M. Hopkins was not in possession of the premises at the time he conveyed them to Oliver Wolcott, for the benefit of James Watson, his conveyance thereof passed nothing, according to the uniform decisions of this Court; and that, in that case, the plaintiff is entitled to recover under his demise from the said Hopkins. If, on the other hand, the said Hopkins was then in possession, the Court is of opinion, that the Deed was good to pass the land to the said Oliver Wolcott, and to enable James Watson, the cestuy que trust thereof, to maintain an Ejectment against the appellees, it, and after, the purposes of the said Deed, as to this land, were satisfied; under the authority of the case of Hart v. Knott, (Cowp. 46;) — ■ and that the lessor of the plaintiff James T. Watson, (he being the son and heir of the said James Watson, and the Deed given in evidence on the part of the defendants shewing that the purpose thereof were satisfied as to the trustee Oliver Wolcott,) was also entitled to recover: so that the plaintiff, as the case now appears, was entitled to recover under one or other of the demises in the declaration. As to the objection founded on the idea, that Samuel M. Hopkins was out of possession when the deed shewn by the defendants was executed by him, there is nothing in it. It was not necessary for him to grant this land at that time, if his first deed was good, nor did he mean to grant it thereby, but only to fortify, more clearly, the interest released by the trustee Oliver Wolcott.

The Judgment is therefore to be reversed, with costs, the verdict set aside, and a new trial granted, in which, if required, the Court ought to instruct the Jury conform-ably to the principles now stated.  