
    *Norvell v. Camm and Wife and Others.
    Wednesday, May 1st, 1811.
    1, Land-Nonpayment of Quitrents — Judgment—Effect. — Under the 30th sect, of the act ol 1748, c, 1, a judgment in favour of a petitioner, for land forfeited by non-payment of quitrents, gave him a preferable right to a grant of the land, which right he could not lose by failing to apply for the grant; but only by a judgment against him in favour of another petitioner.
    2. Treasury Land-W arrant — Waste and Unappropriated Land. — A treasury land-warrant cannot be laid upon land, as “waste and unappropriated,” which is in the possession of a person holding under a patent and settlement.
    In ejectment, on behalf of John Camm and Betsey his wife, and John Warwick and Mary his wife, children of Thomas Powell, deceased, late of the county of Amherst, against Reuben Norvell, a special verdict was found as follows:
    “We of the jury find that a patent for 3,926 acres ox land, comprising that claimed in the plaintiff’s declaration, issued,to James Christian, John Christian, and William Brown, on the 10th day of September, 1755, in these words, to wit, &c. : that before the year 1765, two of the aforesaid patentees, John and James Christian, departed this life ; no division of the land contained in their aforesaid patent having been made ; that, after the death of the aforesaid John and James, two of the sons of the said John, to wit, John Christian and Charles Christian, presented a petition to the governor of the colony of Virginia, claiming the said patented land, as forfeited for non-payment of quit-rents ; and that, on the 29th day of April, 1774, a judgment of the general court was rendered on said petition, in favour of the petitioners, and ordered to be certified to the governor ; which judgment and order is in these words, to wit, &c. ; that, on the 30th day of October, 1777, the said petitioners John and Charles Christian conveyed to James Gresham, and put him in possession of 933 acres of laud, (part of the original patent above mentioned,) by deed of bargain and sale, in these words, to wit, &c. ; that, on the 21st day of August, 1787, the said James Gresham conveyed to Thomas Powell, and put him in possession of 433 acres of land, (part of the 933 last above mentioned,) by deed of bargain and sale, in these words, to wit, &c. ; that the land mentioned in the declaration in this cause is the same 433 acres, conveyed from Gresham to Powell, as *above said ; that the wives of the lessors of the plaintiff are the daughters, and the only lineal descendants, of the said Thomas Powell, who departed this life in testal e, on the day of ,1788; that the said lessors, and those under whom they claim, have been in the undisturbed possession of the lands claimed in the declaration, from the year 1774 until November, in the year 1800, when the present defendant, Norvell, entered upon the possession of the wives of the said lessors, and ousted them therefrom ; and that the said lessors, and those under whom they claim, have regularly, until the present day, paid the taxes to the commonwealth upon these lands,”
    “ We also find that the defendant, Norvell, hath obtained a patent, including about 330 acres of the land in controversy, founded upon a land-office treasury warrant, entered with the surveyor of Amherst county, on the 4th day of September, 1794 ; which entry is in these words, to wit, &c. ; and surveyed by the said surveyor, on the 27th day of November, 1795, which survey is in these words, to wit, &c. ; and which patent is in these words, to wit, &c. dated the 23d of November, 1797.”
    “We further find that the original patentees, or their survivor or survivors, remain in the undisturbed possession of the aforesaid patented lands from the day
    of , 1761, until the aforesaid petitioners obtained possession thereof. We find that the defendant Norvell has remained in possession of the lands mentioned in the declaration from the time of his ouster above mentioned, until the present day. And if, &c. we find,” &c.
    Upon this special verdict, the district court was of opinion that the law was for the plaintiff. Judgment accordingly, and appeal.
    Call, for the appellant.
    John and Charles Christian, under whom the appellees claim, never obtained a grant after the judgment of the general court in their favour. *The judgment was not sufficient to give them a title ; its only effects were arevestiture of the land in the crown, and a preferable right in them to make application for the grant, 
    
    If the petitioner in such case did get the grant, he had no right to enter upon the land, but was as much an intruder as anybody else.
    In contemplation of law, the commonwealth’s possession is never devested by an intrusion. At least, such was the case previous to the act of January 24th, 1798 ; though since that time, thirty years’ possession is good against the commonwealth. The maxim “nullum tempus occurrit regi”  applies to all cases arising before that act.
    
      An intruder cannot maintain ejectment, because he cannot make a lease to try the title. And here there was an entry within twenty years upon the intruders.
    Wirt, for the appellees.
    The special verdict finds in us undisturbed possession for twenty-six years. Mr. Call relies merely on an entry with the surveyor, not an actual entry upon the land. Under the act of 1748, the petitioner for lapsed land, when the decision was in his favour, was “entitled’' to the land itself “in the same manner, and subject to the same conditions and provisoes as lands not before patented are subject.” The land, therefore, was no longer “waste and unappropriated,” and could not be granted by the king or commonwealth to any other person, without destroying the petitioner’s lien upon it.
    Even if the question were between the king and us, we do not answer to the description of intruders; for an intruder is one who enters by strong hand, without colour of title.
    Wickham, on the same side. I might admit every position of Mr. Call, and safely rely on our length of possession ; for, in ejectment, nothing farther need be proved. *The plaintiff is entitled to recover on twenty years’ possession, without showing any title from the commonwealth.
    The doctrine laid down in Runnington, p. 14, IS, is only that the king’s lessee has the benefit of the maxim of nullum tempus; presupposing that the title has all along remained in the king : but when he has parted with it by a grant to one person, he cannot afterwards grant it to another. The second grantee is merely a wrongdoer, and cannot take advantage of the' maxim. The case in 2 Leon. 147, is badly reported, and scarcely intelligible. That in Alleyne, p. 11, as far as I can understand it, is authority in our favour.
    Call, in reply.
    Every plaintiff in ejectment is bound to prove that the land has been granted by the commonwealth ; for, unless the commonwealth has granted, her right cannot be devested. If the king’s lessee for years has the benefit of the maxim of nullum tempus ; surely, a fortiori, a patentee of the fee-simple (as Norvell is) has the same benefit.
    In Jones v. Williams, 1 Wash. 230, David Rodgers, in favour of whose right the court decided, had made a prior settlement, which gave him the right of pre-emption to obtain the patent: but in this special verdict nothing is said of seating and planting. In Miller v. Page, (MS. May, 1806,) Col. Carey and his heirs had paid the quitrents for many years ; yet the court determined that Page’s title was good, not from his being representative of Carey, but only on the ground of the entry made by himself. The payment of quitrents was considered as no foundation of title.
    Wickham. Whenever there have been two grants from the commonwealth of the same land, as “waste and unappropriated,” the second grant is void,  Showing a prior grant to any person is enough for the defendant; *that being sufficient to defeat the subsequent grant.
    Call. Mr. Wickham’s client cannot maintain his title without showing a grant to himself, or those under whom he claims. The judgment of the general court annulled the former patent, and revested the land in the commonwealth. She has never since granted it to any body but to Norvell.
    
      
       For sequel to the principal case, see Warwick v. Norvell, 1 Leigh 96, 97, 98, 99, 100.
    
    
      
       Treasury Land-Warrant — Waste and Unappropriated Land. — where the title to lands has been revested in the commonwealth for nonpayment of quitrents, such lands cannot be taken np as waste and unappropriated, under a land-office treasury warrant, but they can only be acquired by petition. Whittington v. Christian, 2 Rand. 363, citing the principal case at pp. 378, 382, 383, as deciding the question.
    
    
      
       Acts of 1748, c.l, s. 30. Edit, of 1769, p. 149.
    
    
      
       Rev. Code, vol. 1, c. 228, p. 378.
    
    
      
       Runn. on Eject. 14, 18; 6 Com. Dig. 64; 2 Leon. 147; Berry & Goodman’s Case, Cro. Eliz. 331; Al-leyne, p. 11, Johnson y. Barrett and others.
    
    
      
       1 Wash. 232, Jones v. Williams.
    
    
      
       Alexander v. Greenup, 1 Munf. 134.
    
   Thursday, ,, May 9th.

The Judges, BROOKE, ROANE, and FEEMING pronounced their opinions; CABEEE not sitting in the cause.

JUDGE BROOKE-

The judgment of the general court, which is set forth in the special verdict in this case, conforms to the 30th section' of the act, entitled “An act for settling the titles and bounds of lands, and for preventing unlawful hunting and ranging,” passed in the year 1748. Under the operation of that section, the judgment in effect revested the legal title to the land in question in the crown, and, at the same time, entitled the petitioners, John and Charles Christian, under whom the lessors of the plaintiff claim, to a grant, upon the same conditions and provisions as if the land had not before been patented. There is nothing in the act which limits the right of the petitioners in point of time; and, unless the land had again been petitioned for as lapsed land, and adjudged forfeited, the lessors of the plaintiff, who have deduced and unquestionable title from the petitioners John and Charles Christian, are still entitled to a patent from the commonwealth, on which the title of the crown has devolved. Having a title to a grant, and it being found in the special verdict that the lessors of the plaintiff, and those under whom they claim,_ have been in the undisturbed possession of the land in the declaration mentioned, from the year 1774 until the year 1800, *1 am of opinion they have made out a . good title in this action against the defendant; and that the judgment of the district court must be affirmed.

JUDGE ROANE.

If it were necessary for the appellees in this case to show a complete title to enable them to recover, they would probably not succeed ; but they have shown a possession of 26 years ; and we are told “that 20 years’ possession tolls the entry of the person having the right ; and that, consequently, although the very right be in the defendant, yet he cannot justify ejecting the plaintiff.”

To obviate the force of this position, it is said that the appellees, and those under whom they claim, were intruders upon the crown, and consequently gained no right whatsoever by the length of possession. Without questioning the correctness of this doctrine, as applying to the naked case of intrusions upon the demesne lands of the crown, without any colour of title whatsoever; it may be doubted whether it is applicable to the case before us, in which there is a judgment, or certificate, which (although it does not vest an absolute and indefeasible estate in the person who obtains it) gives him “a right to purchase the particular tract of land in preference to others.” The English doctrines on this subject, which have been cited, do not, therefore, seem to apply to this case, in which, on the payment of a moderate composition within a reasonable time, the party might have taken out his patent. On the ground of the 26 years’ possession, therefore, the appellees were entitled to recover; and the judgment of the district court in their favour is correct, and ought to be affirmed.

JUDGE FLEMING.

It has been decided by this court, in a variety of cases, that a treasury land-warrant cannot be laid on land, as waste and unappropriated, that has been patented and settled ; and, more especially, where *(as in the case before us) the land had been in quiet possession of others, lawfully acquired, for near thirty years. I therefore concur in opinion that the judgment be affirmed.

Judgment unanimously affirmed. 
      
       Butler’s N. P. 103.
     
      
       1 Wash. 40, Willcox v. Galloway.
     