
    
      Tichanal v. Roe.
    August, 1843,
    Lewisburg.
    (Absent Cabell, P., and Brooke, J.)
    Patent for Land — Construction of Statute.* — Construction of the act in 1 R. C. of 1819, ch. 86. § 40, p. 330, widen declares that “no entry or location on any lands witbin tbis commonwealth, which have been settled thirty years prior to the date of such entry or location, and upon which quitrents or taxes can he proved to have been paid at any time within the said thirty years, shall be deemed valid;” and relinquishes any title that the commonwealth may be supposed to have thereto.
    ¿ame — Case at Bar. — dm 1796, a person settled upon, cleared and improved a tract of land. In 1806, he conveyed a part of it by metes and bounds. And in 1834, the land embraced in this conveyance was granted by the commonwealth in conformity with a survey made in 1833. It appearing that the tenant claiming under the deed of 1806 had.entered upon, settled and improved the land conveyed by this deed, and'had, during the period he held it, paid the taxes thereon, and that a portion of this land was actually enclosed in 1796, when the tract of which it then formed a part was settled, held, it is ccmpetent for the tenant to connect his possession with the possession of those under whom he claims (the same never having been interrupted); and it thus appearing that the location on which the commonwealth’s grant was founded was on lands which had been settled thirty years prior to the date of the location, and upon which taxes had been paid within that time, held farther, that the location was invalid, and that no title passed by the commonwealth’s grant.
    This was a writ of right brought in the circuit court of Harrison on the 10th of April 183S, by David Tichanal against John Roe. The mise was tried the 17th of October 1838.
    At the trial, the tenant gave in evidence to the jury a deed bearing date the 4th of January 1806, from Thomas Bartlett to Jesse Bartlett, conveying by metes and bounds a tract of land in Harrison county, which was admitted to record in the court of the said county at June term 1806; and 289 also a deed bearing date the *7th of June 1806, from Jesse Bartlett and wife to John Roe for the same land, which was admitted t.o record in the same court at the same term. The said tenant proved by witnesses, that in the summer of 1806 he went upon said land, claiming it under his deed according to certain lines marked 1, 2, 3, 4, on the plat of the survey made under the order of court in the cause, and cleared a turnip patch within the said lines: that in the spring of 1807 he built a house about the middle of the area within these lines, and improved about 20 acres of the land : and that he has resided upon the land ever since, and claimed the whole of the area within the said lines, and paid the taxes thereof. In 1811, one Sanford Bartlett, now dead, shewed to Starling Bartlett, one of the witnesses, two white oak trees standing at figure 1, on the plat, and told the witness those two trees were a corner to his Sanford’s land referred to in the tenant’s deed; which trees were then marked. They are not now there, but there is a white oak stump standing where said trees stood in 1811. The surveyor who made out the plat of the survey in this case’, proved that when he made the said survey, he began at figure 1, shewn to him by the witness Starling Bartlett as the place where said Sanford Bartlett had shewn him the two white oak trees as aforesaid, and he (the surveyor) ran out the courses and distances of the deed from Jesse Bartlett aforesaid, and did not find any corner or line trees marked on the lines from figure 1, to figure 4, on the plat. The tenant also proved, that the demandant had resided a near neighbour to the tenant ever since he the tenant first settled upon said land: that Thomas Bartlett before named lived upon a larger tract of land (which he got of Simpson) which included the tract of land in dispute, and had cleared, improved and cultivated a part of the land he lived on as early as the year 1796, and continued to live on the same until some time after 290 he made *his deed to Jesse Bartlett: that the said Thomas Bartlett claimed the land in controversy as part of the tract on which he lived, but that the improvement made by the said Thomas Bartlett was not within the bounds of the land in controversy ; and that in the year 1796 the said Thomas Bartlett fenced about one half acre of the land in controversy, including a lick called the Stone coal lick (claiming it as being part of his land), for the purpose of taking wild deer, and not for the purpose of cultivation. A witness for the tenant also deposed, that he thinks the tenant settled upon the land in controversy about 32 or 33 years ago (the witness was certain it was at least 31 years), and has continued in the actual possession thereof, claiming it as his own under the said deed. The de-mandant then gave in evidence a grant from the commonwealth of Virginia, bearing date the first of May 1834, whereby it appeared, that in conformity with a survey made on the 18th of March 1833, there was granted by the commonwealth unto David Tichanal a tract of land in Harrison county; and the demandant proved that the boundaries of the land so granted to him include the land in controversy, and also proved that in 1834 he entered the land so granted with the commissioner of the revenue for Harrison county for taxation, and has paid the taxes thereon ever since.
    This being all the evidence in the cause, the demandant demurred to the same, the tenant joined in the demurrer, and the jury found a verdict subject to the opinion of the court upon the demurrer.
    The question on the demurrer turned upon the act passed the 24th day of January 1798, declaring that “no entry or location on any lands within this commonwealth, which have been settled thirtj' years prior to the date of such entry or location, and upon which quitrents or taxes can be proved to have been paid at any time within the said thirty years, 291 shall be deemed valid; *and any title which the commonwealth may be supposed to have thereto is hereby relinquished.” Sess. Acts of 1797-8, ch. 10, g 1 ;■ 1 R. C. of 1819, ch. 86, ? 40, p. 330.
    The circuit court, under this act, held the evidence sufficient to maintain the mise joined on the part of the tenant, and entered judgment that he hold the tenement demanded against him to him and his heirs, acquit of the demandant and his heirs forever, and that he recover against the de-mandant his costs.
    To this judgment a supersedeas was awarded.
    The cause was submitted without argument, by William A. • Harrison for the plaintiff in error, and George H. Tee for the defendant in error.
    
      
      Tempus Regí Non Occurrit — Statutory Exception.— The principal case, Gore v. Lawson, 8 Leigh 458, and Shanks v. Lancaster, 5 Gratt. 110, are cited in Levasser v. Washburn, 11 Gratt. 578, for the proposition that there can be no adversary possession of lands against the commonwealth, and that no time will bar her recovery, or that of her grantee, against the party holding, except only in the solitary case specially provided by the statute, of a settlement of thirty years accompanied by payment of taxes or quit rents within that time. See monographic note^ on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
   At,HEN, J.,

delivered the following as the resolution of the court:

The court is of opinion that on the demurrer to evidence, and as against the party demurring, the jury would have been justified in inferring, under the circumstances of this case, an actual settlement on and occupation of the land in controversy by Thomas Bartlett, as early as the year 1796; it appearing that as early as the year 1796 the said Thomas had settled upon, cleared and improved a tract of land, of which the land in controversy formed a part, and that he actually enclosed a portion of the land in controversy in that year. The court is further of opinion that as the tenant claims under a deed from said Thomas to his son Jesse, conveying to him the land in controversy by metes and bounds, and as the tenant has entered upon, settled and improved the ■ land comprised within the boundaries described in the deed, and during the period he has so held the land has paid the taxes thereon, it is competent for the tenant to connect his possession with the possession of those under whom he claims (the same *never having been interrupted), and to refer to the period at which the first settlement was made by Thomas Bartlett, to ascertain the date from which the time of the settlement should be computed. And it thus appearing that the said land in controversy was settled more than thirty years prior to the location which was the foundation of the demandant’s patent, the land so settled by the tenant and those under whom he claimed was not liable to entry or location when the entry of the demandant was made; the title of the commonwealth having, by operation of law, been relinquished to and vested in the tenant prior to such entry. The court is therefore of opinion, for the reasons aforesaid, that the law upon the demurrer to evidence was for the tenant, and that there is no error in the judgment of the said circuit superior court. Therefore it is considered that the same be affirmed.

• The other judges concurring, judgment affirmed.  