Page:Harvard Law Review Volume 32.djvu/881

845 NOTES 845 afl5rmative. It has been said that adverse possession is interrupted because of a poHcy of the law suggested by the principle nullum tempus occurrit regi. The argument is that as adverse possession does not de- prive the sovereign of title, acquisition of title by the sovereign inter- rupts the continuity of the adverse holding.^ The difl&culty with this reasoning is in the premise, because a tax sale does not require "even a momentary title to the land" in the sovereign.^ Where there is a for- feiture or purchase by the state for taxes the argument seems sound. ^ But ordinarily the state is only a lienholder. It disposes of its lien at the tax sale, and after the period for redemption expires, the purchaser gets his tax deed and with it a new, independent title. It is this inde- pendent title, giving a new right of entry, which splits the adverse possession.* The foreclosure of a lien on an estate in the land as distinguished from a hen on the land itself does not give the purchaser an independent title. This rule has been illustrated recently in Virginia ^ where a statute makes the tax a lien on the interest of the party assessed.^" The Statute of Limitations barred the right of entry of the party taxed (who was assumed to be the owner) before the foreclosure of the lien. Since the statute destroyed the estate, it was held that the lien fell with it, so that the subsequent purchase and conveyance by the state were nugatory. In the case McClanahan's Adm'r et al. v. Norfolk & W. Ry. Co. et al}^ principally relied upon, possession adverse against a judg- ment debtor for the required period starved the judgment lien. It would seem immaterial whether the adverse possession began prior to the birth of the lien, as in this case, or after. Where the lien is a parasite on a particular estate, the same result must follow as long as possession is adverse to the owner of the estate, whether tax debtor,^^ judgment creditor, or mortgagor.^^ The grantee of an estate subject to a tax lien acquires no right against the lienor, or purchaser, at the foreclosure ^ See Davies v. Collins et al., 43 Fed. 31, 33 (1890). ^ See Harrison v. Dolan, 172 Mass. 395, 396, 52 N. E. 513 (1899). The court in- timated that even if the state had acquired title, the continuity would not have been broken, because by statute in Massachusetts adverse possession is efficacious against the Commonwealth. See 12 Harv. L. Rev. 569. ^ Armstrong v. Morrill, 14 Wall. (U. S.) 120 (1871). In this case lands forfeited for nonpayment of taxes were allowed to be redeemed, by statutory enactment. Strong, Davis, and Bradley, JJ., dissented from the decision that adverse possession before the forfeiture and after the redemption could not be tacked. The reason for the rule nullum tempus occurrit regi, that it is against public policy that public rights and property should be prejudiced by the negligence of public officers, would not necessarily preclude the tacking of adverse possession enjoyed be- fore and after the period in which the sovereign had title. For a discussion of the maxim, see Buswell, Limitations and Adverse Possession, § 97. ^ This is the "subtle argument" suggested by Judge Holmes in Harrison v. Dolan, supra. There the disseisee purchased a quitclaim of the tax title from the purchaser of the tax deed. The argument was evaded on the ground that the purchaser of the tax title was disseised by the continued possession of the defendant and that prior to Stat. 1891, c. 354, 398, the common-law rule prevailed that a disseisee cannot assign his right of entry. " Virginia Code, § 661. " 96 S. E. 453 (Va., 1918). ^ Jordan v. Higgins et al., 63 Texas, 150 (1885). " Le Roy v. Rogers, 30 Cal. 229 (1866).
 * Virginia and West Virginia Coal Co. v. Charles, 254 Fed. 379, 390 (1918).