
    * Staats v. Board.
    July Term, 1853,
    Lewisburg.
    I.Forfeited Land — Statute—When Forfeiture Complete. — Land haying: been forfeited under the act of the 27th of February 1835. Sess. Acts, p. 11, for the failure to enter them on the commissioners’ books, that forfeiture was complete on the 1st of November 1836, the period limited in which the forfeiture might be saved by complying with the provisions of the act of March 23d, 1836, Sess. Acts 1835-6, p. 7.
    2. Same — Same—Redemption—Effect on Forfeiture.— The act of March 30th, 1837, Sess. Acts, p. 9, giving time for redemption until the 15th of January 1838, did not release the forfeiture which had accrued, except in cases where the owner or proprietor availed himself of the privilege of redemption.
    3. Same — Completion of Forfeiture — Judicial Proceedings Unnecessary. — The forfeiture in such case became absolute and complete by the failure to enter and pay the taxes due on the land and the damages, in the manner prescribed by the act of the 27th of February 1835: And no inquisition, or judicial proceeding, or inquest or finding of any kind was required to consummate such forfeiture.
    4. Same — Tempus Regi Non Occurrit. — After the forfeiture of the land to the commonwealth no possession thereof adverse to the proprietor in whose name it was forfeited, can run against the commonwealth.
    5. Same. — QuabSe: Whether after the lien of the commonwealth for taxes attaches to lands, any possession adverse to the proprietor can operate so as to impede the right of the commonwealth to subject said lands to sale or forfeiture for such taxes; and as a consequence to transfer to a purchaser, or vest in an actual occupant, or subject to re-entry and grant, such forfeited lands.
    This was ■ an action of ejectment in the Circuit court of Jackson,- brought in April 1844, by Jacob Staats’ lessee against John Board and Charles Board, to recover a tract of fifteen hundred acres of land. On the trial the plaintiff introduced in evidence a patent from the commonwealth bearing date the 10th day of Eebruary 1786 to Sav-ary De Valcoulon for fifteen hundred acres of land, being the land sued for; and also the will of said Savary duly admitted to probat, by which he devised all his real estate to Robert Alexander *of Kentucky. The plaintiff also introduced the report of the commissioner of delinquent lands for the county of Jackson, and the proceedings thereupon; by which it appeared that this land had been forfeited for the failure to enter it upon the commissioners’ books; and that in 1841 the same had been decreed to be sold and was sold as forfeited land, and was purchased by Daniel G. Morrill, who afterwards conveyed it to the plaintiff.
    The defendants on their part introduced a title bond bearing date the 1st of October 1833, by which James T. Watson, reciting that he had sold to John Board a tract of one hundred and twenty acres of land in the county -of Jackson, lying as therein described, bound himself to make to-Board a valid conveyance for the same when the purchase money was paid. And they proved that in 1833 John Board took possession of the land described in the bond, erected houses and cleared portions of the land, and had resided thereon continually with his son, the other defendant Charles Board, claiming and using said land as his own under and in pursuance of said bond. And it was proved that the land so claimed and occupied by the defendants, is embraced within the boundaries of the grant aforesaid to Savary. And this being all the evidence introduced by the defendants, the court upon their motion, instructed the jury, “'That if they believed from the evidence that the defendants entered upon said land and took possession thereof under said title bond, claiming and using it as their own, and have continually held such possession for more than seven years prior to the institution of this suit, that they are entitled to the benefit of the protection of the statute of limitations, notwithstanding the grant to the said Savary and the forfeiture, sale and purchase thereof, as disclosed by the evidence adduced by the plaintiffs.” To the giving of this instruction the plaintiff excepted; *and there being a verdict and judgment for the defendants, he applied to this court for a supersedeas, which was awarded.
    Fisher, for the appellant.
    B. H. Smith, for the appellees.
    
      
      Forfeiture of Lands — Statute—Effect—When Forfeiture Complete. — Upon this subject, see foot-notes to Levasser v. Washburn, 11 Gratt. 573; Ushers v. Pride, 15 Gratt. 190; Atkins v. Lewis, 14 Gratt. 30; Martin v. Snowden, 18 Gratt. 100, where there is a collection of the authorities which cite the principal case. In addition to those there collected, see, citing the principal case, Van Grinden v. Va. Coal & Iron Co., 52 Fed. Rep. 851; Silliman v. Fredericksburg, Orange, etc., R. R. Co., 27 Gratt. 132.
    
    
      
      Same — Tempus Regi Non Occurrit. — See foot-note to Levasser v. Washburn, 11 Gratt. 572.
    
   ARLEN, J.,

delivered the opinion of the court:

It seems to the court here that as by the 52d section of the act of February 9th, 1814, 2 Rev. Code, p. 546, all previous laws forfeiting lands for the failure to enter them ■on the books of the commissioners of the revenue, were repealed, and no provision was made by subsequent laws forfeiting lands for such failure prior to the act of the 27th February 1835, Sess. Acts, p. 11, no such forfeiture occurred prior to that time.

It further seems to the court, that as by the act of March 23, 1836, Sess. Acts, p. 7, time w'as allowed until the 1st day of November 1836, for all persons to cause their ■omitted lands to be entered with the commissioner of the revenue, and to pay the taxes thereon in the manner prescribed in the 2d section of the act of February 27th, 1835, the forfeiture became absolute from and after the 1st of November 1836. That the provision of the act of March 30th, 1837, giving time for redemption until the 15th of January 1838, did not release the forfeitures which had accrued, except in such cases where the owner or proprietor availed himself of the privilege of redeeming.

And it further seems to the court, that such forfeiture became absolute and com píete by the failure to enter and pay the taxes thereon in the manner prescribed by the act of 27th of February 1835: And no inquisition, or judicial proceedings, or in•quest, or finding of any kind was required to consummate such forfeiture. And without deciding in this cause, whether, after the lien of the commonwealth attaches to *lands, any possession adverse to the proprietor could operate so as to impede the right of the commonwealth to subject said lands to sale or forfeiture for such taxes, and as a consequence to transfer to a purchaser, or vest in an actual occupant, or subject to re-entry and grant, such forfeited lands, it seems to the court that from and after such forfeiture no such adverse possession can run against the commonwealth.

And it appearing from the facts set forth in the bill of exceptions, that the grant to Savary De Valcoulon issued on the 10th of February 1786; that the same had never been entered on the commissioners’ books for taxation, and had therefore been omitted prior to 1831, the forfeiture thereof was complete from and after the 1st of November 1836; and the adverse possession relied on by the defendant, if it could have availed for any purpose as against the commonwealth, ceased to run from that day.

And it further appearing that the title bond under which the defendants entered and took and thereafter held possession of the land described in said title bond, was dated the 1st of October 1833; that said land so claimed and occupied by the defendants was embraced within the boundaries of the grant to Savary De Valcoulon, it seems to the court here that such possession so held, did not entitle the defendants to the protection of the bar of the statute of limitations, as the time which intervened between the date of said title bond and the forfeiture was but three years and one month; and even if it were proper to add thereto the time which intervened between the decree confirming the sale made by the commissioner of delinquent and forfeited lands, which was entered on the 14th of April 1842, or the time from the date of the deed from the commissioner the 19th of April 1843, and the 1st of April 1844, the time of instituting this suit, there would not have been, in any view of the facts set *forth, an adverse possession for a sufficient length of time to entitle the defendants to the protection of the bar of the statute of limitations.

It seems therefore to the court here, that the said Circuit superior court erred in giving the instruction in the said bill of exceptions contained. It is therefore considered lhat the said judgment be reversed and annulled, and the verdict be set aside; and the cause be remanded for a new trial to be had; upon which said instruction is not to be given: And that the plaintiff in error recover of the defendants in error his costs.

Judgment reversed.  