Now, as to first of the decrees or judgments or orders-by whatever name the release may be called-of the County Court of Kanawha:
It does not aver or show that the land was not, prior to the first day of April, 1831, vested in the President and Directors of the Literary Fund.
It does not aver and show that Matthias Bruen derived title to the land from any of the persons in whose names the land is shown by the release to have been returned delinquent; nor does it aver or show that Bruen claimed the land either mediately or immediately by grant from the commonwealth.
It does not aver or show that Bruen had legal possession of said land.
It does not aver or show that said land had been returned delinquent (as it was) in the names of Jesse Waln and others, or any other person or persons, from 1805 to 1814, inclusive. Therefore, the court had no jurisdiction to release the land for those years, and for the delinquency of those years the land became forfeited, and vested in the commonwealth.
The second release is equally defective.
It does not aver or show that the land was not, prior to the 1st of April, 1831, vested in the President and Directors of the Literary Fund; nor does it show any of the prerequisites necessary to give the court jurisdiction, unless it can be aided by the recital in the first release, which it cannot be.
It does not aver or show that, between the years 1815 and 1820, inclusive, there was property on the land, out of which the sheriff or collector might have made distress for the tax, or that the taxes for which the land was returned delinquent were not in arrear and due, or that they had been paid; and yet these were the only grounds upon which the release was authorized under the second section of the act aforesaid.
It was error to exonerate the land from all the taxes and damages charged or chargeable thereon, whether charged in the name of Bruen, or any other person or persons whatsoever; this was unauthorized by law, and in derogation of the provisions in favor of bon a fide occupants in the same act.
Both the releases aver that the land, at the time of the releases, lay partly in Mason and partly in Kanawha, without showing what parts or proportions lay in the respective counties, and yet the act only authorized the County Court of Kanawha to release so much of said land as was situate in Kanawha County. Releasing the whole land, therefore, in both counties, was contrary to law, and makes the entire judgment void.
Moreover, the whole reading of the 21st and 22d sections shows that they had reference to lands returned delinquent before or but up to the year 1831, the date of the act. Now the judgments exonerate them for 1831; that is to say, to 1831 inclusive. These sections, relied on by the plaintiffs, employ the past tense. They are sections of amnesty for the past; having no reference to delinquencies after the date of the act. The main purpose of the act was to secure the payment of taxes in arrear. We cannot reasonably suppose that the legislature invited owners not to pay, by giving them the right to have their lands released for future time.
2. Though the Virginia code gives a right to sue in ejectment certain persons not in what the common law would call 'possession,' it has never been regarded as authorizing suit against parties who had merely made entry and surveys, under which they were about to set up claims. The provision of the code, which, it is to be noted, is in derogation of the common law principle, speaks of persons 'exercising ownership thereon; or claiming title thereto, or some interest therein.' The instruction goes beyond this.
3. Our third point may be less tenable than the others. Still we think that a person may be in possession, not asserting any title, and yet that such occupancy will not be actually and positively subservient to another title. It may be negative in its operation only; but the court below makes it positive, and positive in favor of a title certainly not in form admitted.
Mr. B. H. Smith, contra.
Mr. Justice MILLER delivered the opinion of the court.
This case has been twice argued before this court. It involves the title to a hundred thousand acres of land. The oral argument has been able on both sides; but the manner in which the record brings the case before us, is one which we have repeatedly condemned, and which has sometimes precluded us from the consideration of points relied on by counsel as error.