
    Robert Bentley v. William Newlon.
    “Virginia military district school-lands, held under a lease for ninety-nine years, renewable forever, are subject to the operation of the statute of limitations during the continuance of the leasehold estate, as well as after the same has been merged in an estate in fee under the act of January 28, 1828, “to provide for the sale of lands granted by Congress for the use of schools within the *'Virginia military district, and to authorize the lessees of said land to surrender their leases and receive certificates of purchase.”
    “Where a judgment debtor holds turn sections of said lands under leases, and assigns the same in fraud of his judgment creditor, who has the fraud declared in chancery so far as regards the amount of such creditor’s judgment, and one of the sections is sold under a decree, and satisfies the judgment and costs, such decree and declaration of fraud do not prevent the statute of limitations from running in favor of such assignee of the two sections, and those claiming under him, as it regards the section not sold under the decree, and not needed to satisfy such judgment.
    This is a petition in error to reverse the judgment of the court of common pleas of Bichland county. Beserved in the district court.
    The original action was brought by Bentley against Newlon, in October, 1853, under the code, to recover possession of, and damages for withholding, a small strip of land lying along the line between the northwest quarter of section 2, owned by Bentley, and the northeast quarter of section 3, owned by Newlon; said strip being in the one or the other of the quarter sections, as the true section line might be determined.
    Newlon, in his first defense, insisted that the disputed strip was in his quarter section, and, in his second defense, that at the time the action was brought, he and those under whom he claimed had,' been in the peaceable and adverse occupancy of the strip in controversy for more than twenty-one years.
    From the bill of exceptions taken on the trial in the common pleas, it appears that the two quarter sections above mentioned/ and in one of which the land in controversy is situated, were Virginia military district school-lands, and were, in the year 1814, leased by separate leases for ninety-nine years, renewable forever, to Thomas Taylor, who assigned his leases to Alexander McGaffick, and that the latter, under the assignment, took possession of the-quarter sections some time prior to the year 1823.
    McGaffick conveyed to Garret Crusen both quarters.
    *Newlon holds his northeast quarter of section 3 under said Crusen by mesne conveyances.
    Prior to August, 1823, Crusen conveyed thirty acres in the north-cast corner of said northwest quarter of section 2 to Moses iápicer.
    Bentley first became the owner of the lease of said northwest quarter of section 2, except the thirty acres above described, by virtue of a conveyance from a master in chancery under a decree-of the late Supreme Court, rendered in Richland county in 1836, at the suit of Riddle and Pollock against said McGaffick, Crusen, and others, declaring the conveyance made by McGaffick to Crusen to-be fraudulent and void as against said Riddle and Pollock to the extent of their judgment. But said decree and the sale thereunder did not finally affect the quarter section owned by Newlon, as the sale of the section bought by Bentley satisfied the decree.
    On the 25th of July, 1853, Bentley procured from the governor of Ohio a deed for said northwest quarter of section 2 executed under and in accordance with the act of January 28, 1828, “to-provide for the sale of lands granted by Congress for the use of schools within the Virginia military land district, and to authorize the lessees of said land to surrender their leases and receive certificates'of purchase and on the trial introduced said deed in-evidence.
    Bentley did not at the trial claim to own any land in said .north-cast quarter of section 3 nor did Newlon claim any right in. said northwest quarter of section 2.
    Bentley gave evidence tending to show that the disputed strip was in the quarter embraced in his deed. Newlon gave evidence tending: to show that said strip was in the quarter he owned. An d it was ad■mitted bythe parties that said Newlon and those under whom he held ■had been in the continuous and adverse occupancy of the disputed slrip for more than twenty-o'ne years, claiming title thereto.
    It further appeared in evidence that Newlon, and those under
    *whom he held, while the land was in the woods, in 1827, built and kept up thence continuously down to the time of trial, a fence on what was claimed to be the true line between the sections, inclosing the disputed strip, and that said fence was ac•quiesced in by Bentley and those in possession before him, as the boundary line, or that no objection was made until within sis months before suit brought.
    The testimony being closed, Bentley, by his counsel, requested -the court to instruct the jury that his right of recovei*y was not barred by the statute of limitations : First, because the fee of the land was, prior to July 25, 1853, the date of the governor’s deed, in the State of Ohio, or in the United States, and that in neither case was his right barred by the statute. Second, because the statute •did not begin to run against him until the date of his purchase at judicial sale, the decree having found that said sale by MeGaffic to Crusen was void as against the complainants in the chancery suit.
    The court refused so to instruct the jury, but said to them that what was the true line between the quarter sections was a question of tact for them to find from the evidence; that the lessees of Virginia military district school-lands could maintain ejectment to remover possession of the lands leased upon their title by lease, and could, in like manner, defend their possession and title under said lease, against any one not having a superior legal or possessory title. That said lands were subject to be hold adversely for a period twenty-one years against a similar lessee and against the plaintiff claiming under a lessee, notwithstanding the plaintiff had within •such twenty-one years surrendered his lease and obtained a deed in fee from the governor of the state; that the plaintiff’s deed from the state did not prevent the statute of limitations from running against him in favor of the defendant, or as against the defendant remove the bar interposed by it, and that said deed could not, under the circumstances of this case, ^operate against the defendant to give a new period of time in favor of the plaintiff from which the ■statute would commence to run; that the decree in the chancery suit in the Supreme Court of the county, and the sale under it, made •no difference as to the running of the statute; that if it had previously commenced to run against those under whom the plaintiff holds or held as lessee, it would continue, notwithstanding the decree and sale to plaintiff under it; that if the parties had acquiesced in a line as the division and boundary line between them for a. period of twenty-one years prior to the commencement of this action, occupation and possession being in accordance thereto, they would-, not be at liberty now to dispute it or abandon it, unless by mutual consent, or the like.
    To which instructions as given, and refusals of the court to instruct the jury as requested, the plaintiff excepted, and now assigns the same for error.
    
      Young, for plaintiff.
    
      Kirkwood & Burnes, for defendant.
   Sutliff, J.

It appears from the record that the defendant has-had continuous adverse possession of the land of which recovery was sought for more than twenty-one years previous to the commencement of the suit. His claim of possession had been indicated ever since some time in 1827, by a fence defining the boundary of the premises. The possession is therefore shown to have been actual, adverse, and notorious on the part of the defendant for' more than a quarter of a century.

The statute of limitations of this state under which such possession was held provided as follows: “That all actions hereinafter mentioned shall be commenced within the several times hereinafter-limited and not after. First, actions of ejectment, or any other-action brought for the recovery of the title or possession of lands, tenements, or hereditaments ^within twenty-one years; pro- ' vided, that actions of forcible entry and detainer or forcible detainer only, shall not be commenced after two years from the time such right of action accrued.”

But it is urged by counsel for plaintiff that the court erred im not instructing the jury that the statute did not apply in this case,_ “ because the fee of the land was, prior to July 25,1853, in the State of Ohio, or in the United States,” and that the statute did not begin to run against the plaintiff until the date of his deed.

This action was one for the possession of land. The defendant’s-lease was a deed as operative to give the right of possession during' the term for which it extends and continues operative, as is the- ■ deed of jdaintiff conveying a title in fee. It was the right of pos- ■ session only that was in issue between the parties.

Both plaintiff and defendant, previous to July 25,1853, held their possessions under similar leases; and their relative rights, under the •statute of limitations as existing on the 25th of July, 1853, could not be changed by any amendment of plaintiff’s lease, or by its renewal, or exchange for an absolute deed of conveyance in fee simple.

Nor do wo perceive any error in the-charge of the court in relation to the decree finding the sale of the land by McGaffick to Crusen void as against the complainants. In order to give any effect to that decree the plaintiff should have shown his right of posses.sion to have been derived and held under and by virtue of it, as ..against the defendant. And this is not shown by the record, nor pretended by counsel to be the fact.

We perceive no error in the record. The judgment of the court of common pleas must therefore be affirmed, and the petition in -error dismissed at plaintiff’s cost.

Judgment accordingly.

Scott, Peck, and Gholson, JJ., concurred.

Brinkerhoee, C. J., having formerly been of counsel, did not sit.  