Fulkerson v. Holmes

It appeared from the bill of exceptions that the plaintiffs, to sustain the issue on their part, offered in evidence a patent from the commonwealth of Virginia to Samuel Young, dated May 7, 1787, for the premises in controversy, which was admitted without objection. They next offered a deed for the same premises from Samuel C. Young to John Holmes, dated July 12, 1819. This deed recited the grant by the commonwealth of Virginia to Samuel Young of the premises in controversy; that Samuel Young, the patentee, had died intestate; that Samuel C. Young, the grantor, was his only child and heir; and that the title to said lands had vested in him. Appended to the deed was a certificate of acknowledgment dated July 15, 1819, at the eastern district of Pennsylvania, purporting to have been taken by RICHARD PETERS, United States judge for the district of Pennsylvania, and signed by him. The deed appeared also to have been witnessed by John Shaw and John Craige. Immediately after the certificate of acknowledgment appeared what purported to be the receipt of Samuel C. Young for the consideration money mentioned in the deed, which was $10,400, signed by him and witnessed by John Craige. The plaintiffs proved the handwriting of Judge PETERS to the certificate, and the death of John Shaw, one of the witnesses, which took place more than 50 years before the trial. Appended to the deed was the following certificate of registration:

'Virginia. At a court begun and held for Lee county, at the court-house thereof, on the fifteenth day of January, 1838, this indenture of bargain and sale for land between Samuel C. Young of the one part, and John Holmes of the other part, was admitted to record upon the certificate of RICHARD PETERS, judge of the Pennsylvania district of the United States.

'J. W. S. MORRISON, D. C.'

The deed bore the following indorsement: 'Recorded in the clerk's office of the county court of Lee, in book No. 7, page 401.

'Teste: J. W. S. MORRISON, D. C.'

The plaintiffs also introduced evidence tending to show that the patent to Samuel Young, and the deed from Samuel C. Young to John Holmes, were found among the papers of the latter after his death, in 1834. They also offered the testimony of John Holmes, a son-in-law of John Holmes, the grantee of the land, who testified that he knew that said grantee owned a tract of 3,000 acres of land in Lee county, Virginia, and that the deed for the land was in the possession of John Holmes, the elder, at the time of his death; that at the request of one of the executors of John Holmes, the elder, and of the family, the witness, in the year 1836, went to Virginia to examine the lands; that he took with him a map and plan and two deeds, one being the patent above mentioned for the lands in controversy, the other the deed from Samuel C. Young to John Holmes for the same lands; and that these papers had been in his possession or under his control for a period of 37 or 38 years. On his said visit the witness went upon the lands with Peter Fulkerson, who lived in sight of them, and who, as Frederick D. Fulkerson and Mr. Ewing, brother-in-law of the latter, recognized him as representing the owners of the land. It was at that time called the 'Holmes Plantation.' There were no intruders upon the land, and no one in actual possession. In 1840, Frederick D. Fulkerson treated by letter with the witness for the purchase of the land, and, in 1846, James Fulkerson wrote the witness to learn the least he would take for the land, and repeated his inquiry in the year 1847. It may be here stated that the defendants claimed possession under patents issued, one to the Peter Fulkerson above mentioned, dated October 30, 1838, and another to said Frederick D. Fulkerson and James Fulkerson and Elizabeth Fulkerson, dated October 31, 1846, and by subsequent conveyances from said patentees. Having introduced this evidence the plaintiffs rested.

One of the defenses set up to the action by the defendants was that under the laws of Virginia the lands in controversy had been forfeited to the state, and the title by reason thereof had, ipso facto, reverted to the state, and was therefore out of the plaintiffs. The acts of the state of Virginia applicable to the present case, providing for the forfeiture of lands delinquent for the non-payment of taxes, were as follows: The second section of the act of February 27, 1835, after reciting, by way of preamble that whereas, it was 'known to the general assembly that many large tracts of land lying west of the Alleghany mountains which were granted by the commonwealth before the first day of April, 1831, never were, or have not been for many years last past, entered on the books of the commissioner of the revenue where they respectively lie, * * *' declared that every owner of any such tract of land should, on or before the first day of July, 1836, enter, or cause to be entered, on the books of the commissioner of revenue for the county in which the lands lay, any land owned by him the title of which came through grants by the commonwealth, and have the same charged with all taxes and damages in arrears properly chargeable thereon, and pay all such taxes and damages which had not been relinquished and exonerated by the second section of the act concerning delinquent and forfeited lands, passed March 10, 1832; and upon failure to do so such lands, not in the actual possession of said owner, should become forfeited to the commonwealth after the first of July, 1836. Laws Va. 1834, 1835, c. 13, p. 12. The second section of the act of March 10, 1832, referred to in the statute just recited, provided that all taxes and damages due and chargeable on lands lying west of the Alleghany mountains, returned delinquent for the year 1831 or any previous year, and which had not been redeemed, or exonerated by former laws, should be discharged, and the lien of the commonwealth therefor relinquished, provided said taxes and damages did not exceed $10. See Laws Va. 1832, c. 73, p. 67. By successive acts of the legislature of Virginia-act of March 23, 1836, (chapter 3, p. 7; Acts 1835-36;) act of March 30, 1837, (chapter 8, p. 9, Acts 1836-37;) act of March 15, 1838, (chapter 8, pp. 16, 17, Acts 1838,)-the time for entering lands upon the books of the commissioners of revenue, and paying the taxes and damages charged thereon, and thereby saving them from forfeiture, was extended to the first day of July, 1838.

In order to prove the forfeiture of the land in controversy to the state of Virginia the defendants introduced 'a table of tracts of land in Lee county assessed with taxes,' certified on September 5, 1876, by the auditor of public accounts of the state of Virginia. This table showed that three tracts of land, containing in the aggregate 6,300 acres, had been listed for taxation against Samuel Young, of Philadelphia, for the years from 1827 to 1832, inclusive. The taxes on the three tracts for the five years from 1827 to 1831, inclusive, were, according to the table, unpaid, and amounted in all to 38 cents. The taxes for 1832 were marked paid. The auditor of public accounts certified that the books of Lee county prior to 1827 were missing; that the records showed that the taxes on said three tracts of Samuel Young had been paid up to and including the year 1822; that the taxes were released to 1831, inclusive; and that said lands were returned among the unascertainable lands in 1832, and subsequently dropped from the commissioners' books of Lee county.

To rebut this testimony introduced by the defendants the plaintiffs put in evidence the certificate of the deputy-sheriff of Lee county, dated December 14, 1837, to the effect that he had placed a tract of land in the name of Samuel Young for 3,000 acres, which was returned in the year 1834 not ascertainable, on the commissioners' books of said county of Lee, and taxed the damages thereon. They also introduced 'an extract,' certified September 5, 1875, by the auditor of public accounts, 'from the land-books of the commissioners of the revenue for the county of Lee, for the years 1838 to 1875, both inclusive, * * *' of lands assessed successively to John Holmes, John Holmes, Jr., and John Holmes' estate, for each of said years. The extract showed that a tract of 3,000 acres of land, conveyed by Samuel C. Young, was listed for taxation to John Holmes and John Holmes, Jr., of Philadelphia, and to the estate of John Holmes, for the years above mentioned. The taxes down to 1874, excepting one year, appeared to have been paid or released by law.

The evidence having been closed, the court, at the request of the plaintiffs, charged the jury as follows: 'That if they believed from the evidence in the cause that the commonwealth, by letters patent, on the seventh day of May, 1787, granted to Samuel Young the parcel of 3,000 acres of land in the declaration mentioned; that Samuel C. Young was the only child and heir of Samuel Young; that Samuel C. Young conveyed the said 3,000 acres, by deed of the twelfth day of July, 1819, to John Holmes, of the city of Philadelphia, Penn.; that said John Holmes was dead; and that the plaintiffs were his heirs,-then the title to this land was satisfactorily traced to the plaintiffs; and that, in consequence of the antiquity of the deed of Samuel C. Young to John Holmes, of twelfth July, 1819, and its custody by said Holmes, the jury might be justified by the testimony tending to prove an acknowledgment of this title by those under whom defendants claim, to accept the recitals of said deed as to the heirship of Samuel C. Yound.' At the request of the defendants the court charged the jury 'that the plaintiffs have attempted to show a right under Samuel Young's patent, and that they cannot derive title from Samuel C. Young unless they prove to the satisfaction of the jury that Samuel Young's rights passed by deed, levise, or descent to Samuel C. Young, under whom the plaintiffs claim.' Having given these charges, the court refused the defendants' request to charge the jury as follows: 'That the recital in the deed of Samuel C. Young that he is the only heir of Samuel Young has been permitted to be read to the jury as evidence, yet it is left to the jury to decide, from all the facts and circumstances in evidence before them, whether Samuel Young is dead or not, and whether Samuel C. Young is his only son and heir or not; and unless they should be clearly satisfied from the evidence that Samuel C. Young is the son and heir of Samuel Young, then they should find for the defendants.' The defendants also asked the court to instruct the jury upon the question of the forfeiture of the lands in controversy under the laws of the state of Virginia, above recited, but the court refused to instruct the jury on this point.

John A. Buchanan, for plaintiffs in error.

[Argument of Counsel from page 395 intentionally omitted]

''Wm. Pinkney Whyte, Patrick Hagan, and John A. Campbell'', for defendants in error.

WOODS, J.