# Armstrong v. Morrill/Dissent Strong

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* Dissenting Opinion Strong
United States Supreme Court
81 U.S. 120
Armstrong v. Morrill
Mr. Justice STRONG, with whom concurred Justices DAVIS and BRADLEY, dissenting.
In the view which a majority of my brethren take of one branch of this case, I am unable to concur.
The plaintiff in the court below claimed title to the land in controversy under a patent of the State of Virginia, granted to Albert Gallatin on the 10th day of February, 1786. It does not appear that any possession was ever taken under this patent, but on the 1st of November, 1836, the lands were forfeited to the State for failure by the owners to make entry thereof upon the commissioners' books, for taxation. On the 12th of February, 1844, however, an act of the legislature was passed for the relief of Dundas and Kugler, who had become the grantees of the Gallatin right, by which they were allowed to redeem the lands, on the payment of all taxes and damages due thereon, and on the 8th day of May, 1845, the redemption was made. The plaintiff has no other title.
The defendants claim as grantees by sundry mesne conveyances through James T. Watson from Samuel M. Hopkins, who also obtained a patent from the State, dated July 1st, 1796.
I agree that neither this patent to Hopkins, nor any legislation of the State affecting it, presents any sufficient defence to the claim of the plaintiff under the earlier patent to Albert Gallatin. But the defendants set up in the court below another defence. It was that they were protected by the statute of limitations. They submitted evidence tending to prove that they, or those through whom they claim, took actual and adversary possession of the lands in 1827, and that such possession had been continued until the institution of this suit. Relying upon this, they presented to the court the following two points (among others), and requested that they might be given as instructions to the jury:
'Fourth. If the jury are satisfied from the evidence that adversary possession commenced before the 1st of November, 1836, and the same possession continued during the time of the forfeiture, as well as from the 8th of May, 1845, the time of redemption, up to the time of the institution of this suit, and by adding the time of adversary possession before forfeiture to the adversary possession after redemption makes a period of fourteen years, then they must find for the defendants, or such of the defendants as make out the fourteen years as aforesaid.
'Fifth. That the act of 1844, which authorized Dundas and Kugler to redeem the lands therein specified, did not so operate as to relieve them from the effect of the statute of limitation, which had commenced running for the defendants before the forfeiture, if the jury believed the defendants continued their possession without interruption during the forfeiture, and up to the time of redemption, and that the defendants continued the possession up to the time of the institution of this suit.'
Both these points the court refused to affirm, and, on the contrary, charged the jury that on the 1st of November, 1836, the possession of the defendants terminated and passed into and remained in the Commonwealth until the same was transferred to Dundas and Kugler by the act of February 12th, 1844, and that the adverse possession acquired by the defendants before November 1st, 1836, could not be connected with the adverse possession acquired by the defendants after Dundas and Kugler became revested with the title of the Commonwealth. Herein, I think, was clear error. Plainly, had there been no forfeiture, the adversary possession of the defendants, kept up continuously during fourteen years, would have protected them against any right of entry by the plaintiff. The forfeiture did not disturb their actual possession, nor their possession under claim of exclusive right in themselves, which is what is meant by adversary. I agree that their possession between the forfeiture and the redemption gave them no right as against the State. This is not because their possession was not adversary, nor because the actual possession was transferred by law to the Commonwealth, but because adversary possession is unavailing to bar any rights of the State, it not being subject to statutes of limitation, unless expressly named. The defendants here are not asserting their adversary possession against the State. The controversy is between them and one claiming under the Gallatin title, which, though at one time forfeited to the State, was allowed to be redeemed. They claim nothing against the State on account of their possession from November 1st, 1836, to May 8th, 1845, though it was adversary and uninterrupted, either by abandonment or by the entry of the State or of the plaintiff.
But why is not that possession operative against the plaintiff? I think it is. As between him and the defendants, nothing but an entry or an action brought was sufficient to change the character of their possession or break its continuity. It is not, however, necessary to discuss this. It is sufficient for this case that the defendants held actual and continuous possession of the lands from 1827 until 1857, when this suit was brought; that the possession was always adversary to the plaintiff; that he never took any steps to disturb it, and that he has had more than fourteen years within which he might have asserted his right.
Concede that the plaintiff's right of entry was suspended by the forfeiture, still it revived when the lands were redeemed, and if the defendants' possession was adverse to his right, and continuous during fourteen years in which he might have entered or asserted his right by action, I am unable to perceive why he is not barred.
The fact that an owner's right of entry has been suspended, after the statute has commenced running against him, can be of no importance, if he has had the statutory period within which to bring his action against the disseizor in adverse possession. If this is not so, then war might not only suspend the running of the statute, but render of no effect all adverse possession held before the war commenced. This has never been asserted. It is the uninterrupted, adverse possession alone which creates the bar. It is not essential to it that the right to enter or to bring suit should have suffered no interruption.
Every reason for applying the statute, which would have existed had there been no forfeiture, and consequently no suspension of the plaintiff's right to enter, exists in full force now. Statutes of limitation are dictated mainly by two considerations: one, that it is public policy to discourage stale claims; and the other, that it is not to be presumed that one having a right would delay asserting it for a long period in full view of another's wrongful interference with it. Hence, the period was fixed at fourteen years, in Virginia and West Virginia, within which a party out of possession may bring his action of ejectment against one in possession holding adversely. Assuming that the jury would have found the facts as stated in the points proposed, the plaintiff has had that entire period, and the public policy, as well as the presumptions arising from his laches, which gave birth to the statute, apply, in all their potency, to his case. And the statute is not only a bar to the assertion of a right of entry upon one in adverse possession after the expiration of the period fixed, but it gives a title to the disseizor. The law casts title upon him, and assures to him the privilege of asserting it, either aggressively or defensively. For the acquisition of this right the defendants have done all that the law contemplates. They entered under a claim of exclusive right, that is, adversarily, and they held that adversary possession continuously until this suit was brought. That the Gallatin title was forfeited during their occupancy was no fault of theirs. It was due to the wrongful neglect of the plaintiff, or those under whom he claims, to enter the lands upon the commissioners' books, and to pay the taxes. Can he now make use of a forfeiture, caused by his own neglect, to obtain or preserve rights which, confessedly, would have no existence but for his neglect? Yet this was, in substance, the instruction given to the jury. His laches, resulting in a forfeiture, is to have the same effect as an entry would have had, or as action brought. Thus he is allowed to secure an advantage through his own default. Thus he is allowed to make use of his own unlawful nonfeasance to break the continuity of the defendants' hostile possession. I cannot assent to such a view of the law.
Had the Commonwealth, after the forfeiture of the Gallatin title, granted the land to some other grantee, I agree that such grantee would not be affected by any adverse possession of the defendants held by them before the forfeiture, of less duration than fourteen years. But such was not the case. The holders of the Gallatin title were allowed to redeem. The nature of the transaction by which they became reinvested with the title is plainly seen in the act of February 12th, 1844, passed for their relief. Its preamble recited that the lands had become forfeited by reason of failure to enter the same on the books of the Commissioners of the Revenue for taxation, and that Dundas and Kugler, the trustees of the North American Land Company, for whose use the title had been held, had petitioned for permission to redeem said lands, on payment of the taxes assessed, together with six per centum per annum damages thereon. The first section authorized them to redeem on those terms, on or before June 1st, 1845. The second section released unto them, for the benefit of the shareholders of the company, all the right, title, and interest which had been forfeited upon the payment of said taxes and damages. The third section authorized a judgment against the lands for the amount of costs incurred, and for reasonable compensation to any commissioner of delinquent and forfeited lands by reason of his having prepared the redeemed lands for sale; and the fourth section directed all proceedings by such commissioners to be suspended until after June 1st, 1845. It thus appears that the redemption was not the acquisition of a new title. It was the common case of a waiver of a forfeiture. Dundas and Kugler, after the redemption, held by their old right, the Gallatin patent, and it was this right which the plaintiff gave in evidence and asserted in the present action. No new patent was issued to Dundas and Kugler. The act of 1844 contains no words of grant to them, and its avowed purpose was to place them in the same position, as holders of the title and trustees of the company, which they occupied before the forfeiture.
I am, therefore, of the opinion that the Circuit Court erred in refusing to affirm the defendants' fourth and fifth points, and also in the instruction which was given to the jury respecting the effect of the statute of limitations. For this reason I think the judgment should be reversed, and that a venire de novo should be awarded.

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