
    Oxford Tp. v. Columbia.
    1. Where a party requests that the court state separately the conclusions of law and fact under the civil code, § 280 (Rev. Stats. § 5205), and the request is not complied with, a judgment against such party should be reversed, unless it appear from the record that he was not prejudiced by the refusal.
    2. Trustees of a township holding title to lands granted to them by the general government for school purposes, are not exempt from the operation of the statute of limitations, in an action prosecuted by them to recover possession of the premises.
    Error to the District Court of Putnam County.
    The trustees of original surveyed township of Oxford, Butler county, Ohio, commenced an action in the court of common pleas of Paulding county, against Elsie Columbia and Thomas H. B. Columbia, to recover possession of a tract of land in that county, alleging in the petition that the plaintiffs have a legal estate in and are entitled to the immediate possession of the premises, and that the defendants wrongfully and unlawfully keep them out of possession. The summons served upon the defendants is dated May 25, 1875. The defendants admit that they are in possession of the premises, but they deny in their answer all other allegations in the petition.
    The judge presiding in that county having an interest in the cause, the same was by agreement of parties certified for trial and judgment to the court of common pleas of Putnam county, in which county a jury was waived and the cause submitted to the court. “ Thereupon the plaintiffs requested the court to find and state in writing the conclusions of fact found separately from the conclusions of law in this case, for the purpose of excepting to the decision of the court upon questions of law involved in the trial. On consideration whereof the court finds that the plaintiffs are not seized of an estate in or entitled to the possession of the property in the petition described or any part thereof, but that the defendants are seized in fee simple and are rightfully entitled to the possession of said lands. Thereupon the plaintiffs moved the court for a new trial for reasons stated in their motion, which motion was overruled by the court. . . . It is therefore considered and adjudged by the court that the defendants go hence without day and recover of the plaintiffs their costs. . . . And then came the plaintiffs and presented their bill of exceptions taken by them in this case, and the same is allowed and filed and ordered to be made part of the record in this case.” The bill of exceptions contains all the testimony offered on the trial.
    The facts, so far as it is necessary to state them, are as follows : Under authority of an act of congress approved March 3, 1839, “ to authorize the trustees of the township of Oxford, in the county of Butler, and state of Ohio, to enter a section of land in lieu of section sixteen, in said township, for the use of schools ” (6 Stat. at. L. 773), the division of the south half of section nineteen lying west of the river in township three north of range four east, in Paulding county, embracing the lands in dispute, was, on February 3,1841, selected among other lands, by the trustees of Oxford township, for school purposes. Subsequently, the inhabitants of Oxford township, at a meeting called, in pursuance of the statute, for such purpose, agreed to accept such selection ; but it does not appear when that meeting was held. On October 5, 1841, the president of the United States issued a patent, reciting the facts above mentioned, and granting said lands “ unto the trustees of the township of Oxford and county of Butler, in the state of Ohio, for the use of schools.” This patent was delivered to the trustees, and upon it their right to recover is based.
    By virtue of acts of congress passed in 1827 and 1828 (4 Stat. at L. 236, 306), an act of tlie general assembly passed in 1828 (27 Ohio L. 16), and other acts (Swan’s C. S. 166, 169 ; Swan’s R. S. 137, 110; S. & C. 198, 200), and a selection made by John A. Bryan, special agent of Ohio, the state, it is claimed, became the owner of the premises in controversy, and clothed with the legal title thereto, in 1811.
    In 1852, Dana Columbia went into possession of the west fraction of said south half of section nineteen, said fraction containing one hundred and sixty-four and nineteen-hundredths acres, and during that year and the year following he enclosed nearly seven-eighths of it with a good fence, cleared more than twenty acres, planted an orchard, farmed the cleared lands, employed workmen to assist him in quarrying stone upon and clearing the lands, and kept cattle thereon. He continued to inprove the lands, built a good frame dwelling-house thereon, built a barn, planted another orchard, made a cistern, and moved upon the farm, where he resided until his death, which occurred in 1865. During all the time from 1852 until his death, his occupancy was open, notorious, continuous and exclusive; and since his death the defendants, his widow and son, who have succeeded to his rights, have occupied in the same manner.
    During all the time that Dana Columbia occupied the premises, he claimed to be in possession as owner under the state. This is shown by the testimony of several witnesses. Judge Latty, a witness called by the plaintiffs, testified : “ Columbia called on me and wanted to know if there was any difficulty in the title of the state, or what was the difficulty. ... I told him I did not know; ... he might not be disturbed. He told me he was about to purchase it at a certain price. . . . (My recollection of the date of the conversation with Columbia is, that it was about 1852 when he spoke of purchasing the land. This may have been the second conversation when he told me he was about to purchase it at a certain price.) Afterward he told me he had purchased it. . . . My impression was that he had surrendered his first certificate and taken a second.” This second certificate issued by the state to Columbia, is dated June 2, 1851, and the purchase money, $328.38, having been paid in full by him, the governor, on January 9, 1855, executed and delivered to him a deed for the premises. He also paid during his life all the taxes assessed against the lands, and the defendants, since his death, have regularly paid all the taxes assessed against that portion of said lands in controversy in this case. In 1866, the widow and heirs conveyed to Calvin L. Noble the north half of the' tract, and he has remained in possession ever since, paying taxes and farming the lands, and it is agreed that he has succeeded to the rights of Dana Columbia and his widow and heirs therein.
    Other facts with respect to the title which appear in the record, and have been commented on by counsel, need not be here stated, in view of the grounds upon which the court has placed the decision of the case.
    The district court of Putnam county affirmed the judgment of the court of common pleas, and this petition in error was filed to reverse the judgment of the latter court as well as the judgment of affirmance.
    
      A. S. Latty and Henry Wewbegin, for plaintiff in error:
    I. It was error for the court to refuse to comply with the request to state separately its findings of fact and law. Section 280 of the Code of 1852.
    II. The allowance of the statute of limitations set up as a bar in favor of the defendants to defeat the recovery of the land by plaintiffs, would be to allow it to defeat the compact made between the United States and the state of Ohio, by which these lands where appropriated for the use of schools in the state, and by which it was mutually agreed that they should,. “ together with all the tracts of lands, before then, appropriated for that purpose, be vested in the legislature of the state, in trust for the use aforesaid, and for no other-use, intent or purpose whatever,” . . for the legislature has never yet passed any act to provide for or allow of their sale or disposal, and until this shall be done they must be considered as remaining subject to the control of the legislature which it has already provided for them.
    The state of Ohio may have parted with any claim which she had to the land in controversy as canal lands, but they were never given to her in trust for any such purpose, nor could she dispose of them in trust for any such purpose.
    We claim that in real actions the statute of limitations cannot commence to run against a person or party who at the time of its commencement had not the power to' convey or occupy the estate; and it will not, we think, be claimed in this case that the plaintiffs have now or ever had the power to convey or occupy the land in controversy.
    And we do also claim, first, that the state of Ohio was a mere trustee of the land in controversy for the people of Oxford township, without the power of disposing of this land without the consent of the inhabitants of that township, and that neither the governor of that state nor any of its agents could by any act of his or theirs authorize Dana Columbia to take advantage of the people of that township and deprive them of their right to the land. Redwood v. Reddick, 4 Mumf. 222.
    Secondly, that Dana Columbia as a mere conscious trespasser took possession of these lands in the first place in subordination to the title of the plaintiffs, and could not therefore, of his own act and without notice to them change the character of his possession. 7 Rich. 181. For at least where a party enters into possession without a claim or color of title and after-wards obtains a good colorable title adverse possession will commence only from that period. For the statute of limitations with respect to real property does not begin to run from the time the tenant came into possession, but from the time of his holding over or making a claim of right to the land. 3 Johns. Ch. 126; 16 Johns. 273 ; 18 Johns. 355. And if the defendants defend this action upon the ground of the statute of limitations their defense must be strictly made out by positive, and not by inferential proof, for every presumption of law is in favor of possession in subordination to the title of the true owner. Brandt v. Ogden, 1 Johns. 156; 9 Johns. 163.
    Dana Columbia had full notice of the title of the present plaintiffs to the land (see printed record, page 15), and when he purchased the land from the state of Ohio as canal lands, in disregard of the claim of the plaintiff and the object for which the land was granted for school purposes, he being affected by the notice, ought at least to be held as a trustee by implication and to hold the land for the plaintiffs. Normburzee v. Kennedy, 4 Dess. 134; 1 McCord Eq. 395, 398.
    We therefore insist, that in view of the legislation and the facts to which we have referred the maxim nullum, tempus oeaurrit regi, should apply to the claim of the defendants that this case is within the statute of limitations, for the claim of the plaintiffs is made by them as the trustees of an express trust created by law, for the benefit of the people, but to be exercised as the legislature of the state of Ohio may direct. The claim that the maxim should be applied as stated, has all the merits which evoked the maxim in the first place at common law, and to allow the plea of the statute to prevail in this instance would be to place a power in the hands of the defendants to defeat the expressed will of the United States, as well as the state of Ohio, which were parties to the compact by which this land was dedicated to common school purposes. See 1 Inst. 41, c; Plowd. 143; Hob. 347; Co. Litt. 90, c, 139, c, 119; Parker v. Baldwin, 11 East, 488; People v. Gilbert, 18 Johns. 228; 4 Bac. Abr. 461; Stoughton v. Baker, 4 Mass. 522; Kennedy v. Touseley, 16 Ala. 239.
    
      G. H. Scribner and S. T. Sutphin, for defendants in error :
    1. As to the statute of limitations: Angelí on Limitations, 400, § 391, p. 402, note, and 409, 411, 416, note ; 11 Shepley (Me.) 29; Arnent v. Wolf, 1 Grant (Pa.) 581; as to the rule in reference to wild lands, see Angelí, p. 405, 406, 407, note; Holt v. Hemphill, 3 Ohio, 232; that no color of title is necessary in Ohio, see Paine v. Skinner, 8 Ohio, 167; Yetzer v. Thorman, 17 Ohio St. 13; McNeely v. Langan, 22 Ohio St. 32, 37; and the possession need not be continuous in any one occupier; MaNeely v. Langan, 22 Ohio St. 32.
    The case being a clear one for the application of the statute of limitations, the question recurs as to whether or not the plaintiffs, who are township trustees, are within the maxim nullum tempus, &c., and therefore not bound by the statute. Either the plaintiffs have the legal title or they have not. If they have not, and the title is in the state, then the state should be the plaintiff. The petition avers that the plaintiffs are seized in fee of the land, and in support of this averment they have given in evidence a patent from the United States, which purports to grant to them the title. If the state should bring an action, we should meet it with the deed made by the state, conveying for a full and valuable consideration, the lands sought to be recovered. But the state is not the plaintiff, nor has she now any title to, or interest in the lands, either as trustee or otherwise. If the general government had the title at the time of the making of the patent, undoubtedly it passed to the trustees of the township. In that case the statute of limitations began to run from the time of the issue of the patent. Wallace v. Minor, 7 Ohio, 252.
    In the ease of Cincinnati v. First Presbyterian Church, 8 Ohio, 299, the late court in bank, after full argument and thorough consideration of the subject, held that the rule nullum tempus, &e., only applies in favor of the sovereign power of the state, and is peculiarly an incident to sovereignty.
    The patent, under the act of 1839, was made to the plaintiffs. If it invested them with the title, a right of action accrued the moment Columbia took adverse possession in the winter of 1852 or 1853. As the action was not brought until May, 1875, it is barred.
    The county was held barred by the case of State v. Beam, 2 Ohio St. 147. Here it will be observed the action was brought in the name of the state. A like ruling has been made in North Carolina. Armstrong v. Dalton, 4 Dev. 568. And that a town or city is bound by the statute, is held in Kennebunk v. Smith, 9 Shepley (Me.) 445; City of Alton v. Ill. Tr. Co., 12 Ill. 38. And now by statute in Massachusetts, the state stands upon the same footing with individuals. Rev. St. Mass. c. 119, § 12; Ibid. c. 120, § 20. And by the Revised Statutes of New York, the same limitations of actions apply to the state as to individuals.
    "We also particularly request the attention of the.court to the authorities collected upon this point in 6 Central Law Journal, 482, 483.
    
      And wliy should not this rule apply to the plaintiffs 1 Why should they be permitted to lie by year after year, for more than twenty-one years, and see money and labor expended, improvements made, cultivated farms brought from out the wilderness, and then escape the statutory limitation ? See Bentley v. Newton, 9 Ohio St. 489.
    2. If there was error in refusing to state separately the findings of fact and law it was not prejudicial to the plaintiff in error. Levi v. Daniels, 22 Ohio St. 38, 44.
   Okby, C. J.

In disposing of this case, it is necessary to determine two questions. 1. The plaintiffs requested the court to state separately, in writing, the conclusions of law and fact. That request was made under the statute, which provided: “ Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.” Civil Code, § 280 ; Rev. Stats. § 5205, note. This provision is one of much importance, and it is in no sense directory. That there was no proper compliance with the request is admitted; and it is clear to us that the action of the court in that respect affords ground of reversal, unless it be shown that the plaintiffs were not prejudiced thereby. But we are of opinion that it is shown that there was no such prejudice as to call for a reversal on that ground. The record contains all the testimony offered on the trial, and objection is made that the judgment below is opposed to the weight of the evidence. In deciding the case, therefore, we necessarily ascertain the facts.

2. If a patent for the lands in dispute could be properly issued by the president, under the act of congress approved in 1839 (6 Stat. at L. 773), that patent was, probably, properly issued “ unto the trustees of the township of Oxford and county of Butler, in the state of Ohio, for the use of schools,” for the title, under the act and patent, would, it seems, pass to the trustees aud not tbe state, notwithstanding the remarks in Trustees v. Campbell, 17 Ohio, 267, s. e. on error, 13 Howard, 211. But we do not find it necessary to determine whether a patent for the lands was or could have been properly issued; nor is it necessary to decide whether the state was or -was not, at any time, clothed with the legal title to the premises. Assuming, without deciding, that the trustees of Oxford township became clothed with the legal title to the premises in 1811, we all unite in holding that they are barred from maintaining this suit by the limitation of twenty-one years, prescribed in the statute as the period within which actions to recover the possession of real estate may be brought, if the statute applies to trustees holding title in the manner claimed. This action, as already stated, was brought in 1875. But Dana Columbia was in possession of the premises from 1852 until his death in 1865, and the defendants who succeeded to his rights have been in possession ever since, and that possession has been, during the whole period, in the largest sense open, notorious, adverse, uninterrupted and exclusive. It has been held and maintained, moreover, from the beginning, under a purchase from the state, and the purchase-money and all taxes have been paid. Large and valuable improvements were made by Columbia upon the premises as early as 1852, and he resided thereon at the time of his death; and if it is true, that the trustees became the owners of the premises for school purposes in 1811, there was no time from 1852 until 1873, when they were not clothed with the power and charged with the duty of prosecuting an action to recover possession. 1 S. &. C. 1577.

The plaintiffs insist, nevertheless, that the title to the premises, under the act of congress of 1839, was in the state, and that the statute of limitations does not run against the state. We have held, however, that the position that the title was in the state, under that act, is not tenable. But if the title had been vested in the state, the result would have been the same, for the state would have been estopped by its deed to Columbia. Branson v. Wirth, 17 Wall. 32, 12. And see 3 Pick. 221; 7 Cal. 527; 1 Peters, 87. It is also said that the plaintiffs are the trustees of an express trust, and that the action is not barred for that reason. Civil Code, §§ 6, 27; Rev. Stats. §§ 4974, 4995. But this is not an action between trustees and beneficiaries.

The remaining question, then, is whether the statute of limitations applies, assuming that the plaintiffs, as trustees of Oxford township, acquired title to the premises, by donation from the general government, in 1841, for the benefit of schools. That the maxim, nullum temjpus occurrit regi, is applicable to the general and state governments, is not denied ; but it was held in Cincinnati v. First Presbyterian Church, 8 Ohio, 298, upon the fullest consideration, that the maxim did not apply where a city prosecuted an action of ejectment to recover possession of lots dedicated to public use, the defendants in the action having been in the adverse possession of the lots for more than twenty-one years. I am aware that cases may be found in opposition to that decision. Several of them are collected in a note to the case as reported in 32 Am. Dec. 718, 721. But that decision has been repeatedly approved in this court, and, as applied to a case like the one-under consideration, it is amply supported here and elsewhere. Williams v. First Presbyterian Church, 1 Ohio St. 478, 510; Trustees v. Campbell, 16 Ohio St. 11; School Directors v. Georges, 50 Mo. 195; 2 Dillon on Mun. Corp. (3 ed.) §§ 668, 674; and see note above referred to. As to the application of the rule to adverse possession of public ways, see Cincinnati v. Evans, 5 Ohio St. 594; cf. Fox v. Hart, 11 Ohio, 414; Lane v. Kennedy, 13 Ohio St. 42; McClelland v. Miller, 28 Ohio St. 488; Railroad v. Commissioners, 31 Ohio St. 338.

Judgment affirmed.  