#### Whitley vs Bramble.

Error to the Harrison Circuit.

*Ejectment. Surveys. Forfeiture of lands.*

Ejectment. *Case*45.

*January 17.*

Statement of the case.

Judge Simpson

delivered the opinion of the Court.

In this action of ejectment, the lessor of the plaintiff, ‘to show title to the land in contest, relied upon a patent in his own name, bearing date the 4th of December, 1845.

The plaintiff in error, who was the defendant in the *144Court below, gave in evidence a copy of a plat and certificate of survey made in the name of Joseph Russell, dated the 23d of March, 1789, on a Virginia Land Office Treasury warrant, and having produced evidence conducing to prove that said *survey*included the land in his possession, moved the Court to instruct the jury, that if they believed from the evidence in the cause, that the survey made for Joseph Russell, embraced the land in contest, then the patent which issued to the plaintiff’s lessor was void. The Court refused to give the instruction, and whether in this it committed an error, is the main question presented for the consideration of this Court.

The patent to the lessor of the plaintiff was obtained under the act of 1835, (3 *Stat. Law,*386.) The fourth section of the act provides, that “any survey or patent made or issued under this act, which interferes with any survey or patent heretofore made or issued, shall be null and void.”

It is contended, that under this act, no appropriation can be made of lands, which were surveyed under claims derived from the laws of Virginia, although they had been forfeited by a failure to return the plats and certificates of the surveys into the Register’s Office, within the time limited by law.

To sustain this position, the act of 1811, *(Statute Law,*915,) extending the time for returning plats and ■certificates of survey to the Register’s Office, is relied ■on. The third section of that act declares that all entries, surveys and grants founded on any of the laws ■of this Commonwealth, so far as they interfere with ■surveys or grants made or issued under or by virtue of any law of Virginia, or any law of this Commonwealth, for extending the times of surveying the claims derived from the laws of Virginia, shall be void. And that no entry, survey or grant, made, surveyed or granted by virtue of any of the laws of this Commonwealth, shall vest any right or interest in the owner or owners thereof, to the lands included in such entry, survey or grant, where such entry, survey or grant has been made to interfere with any survey made previous to the 29th *145'day-of November, one thousand seven hundred and ninety eight.

'The statute-of 1797, (1 *Statute Law,*911,) was the last act ¡of the ¡Legislature of Ky., .extending the time of surveying claims derived from the State of Va.-, and a failure to return a survey according to the provisions ofthat act resulted in a forfeiture of the lands.

Under the Virginia 'land law, an entry which was not surveyed within the prescribed time, became void, and the land was liable to be again entered, by any person holding a land warrant. The act of 1797, (1 *Stat. Law,*911,) was the last statute ¡of Kentucky extending the time for making surveys under claims derived from the laws of Virginia. A failure to return a plat and •certificate of the survey when made, to the proper office wfithin the time limited by law, had a similar ¡effect under the laws of Virginia;; by such failure the right was forfeited and became void, and ¡the land <was subject to appropriation by other persons.

The Legislature ¡of this State passed various acts -extending '¡the time for returning plats and certificates ¡of •.survey made under claims derived from the laws of Virginia. The act of 1811, *(¿supra,)*was .passed for this purpose, and is the last general act upon this subject. Jt allowed the further time of two years from the first •-day- of March, 1810. And by the fourth section thereof •it was enacted, that as to -all plats -and ¡certificates of ¡surveys,-not returned to the Register’s Office within the time therein limited, the lands described in such surveys ■should be forfeited to the Commonwealth, and remain for the future disposition of the Legislature.

The object ¡of the third section of the act 'of 1811, was-evidently to secure to claims derived from the laws ¡of Virginia, notwithstanding .the failure to return the ¡plats and certificates .¡of survey within the time prescribed by law, that priority t<o which they 'had ■ been ¡previously .entitled. And to .attain that object more ¡effectually, ;i-t declared utterly null and void, all entries, surveys or grants interfering with such claims, founded •on any of .the laws of this Commonwealth. But the Legislature could not have intended to extend to such •claims this protection for a longer period of time than was given by the act itself, to ¡carry them into grant. Where grants had been procured, or should be after-wards obtained in pursuance of the statute, it operated in their favor, and secured them against all interfering *146claims derived from the laws of this State. But where the claim became invalid by a failure to return the plat and certificate of survey within the limited time, the act itself declared the land forfeited; and the third section of the statute in such cases, had no application, and afforded no further protection to the lifeless claim.

neither the stat. ■of 1835, (3 *Slat. Law,*386,) nor that of 1811, (1 *Stal. Law,*915,) afford any protection to a survey upon a Virginia Treasury warrant made in 1789, but never returned to the Register’s office.

Russell’s survey was made in time, but the plat and certificate thereof not having been returned to the proper office in the time prescribed by law, all right to the'land described in it, was forfeited to the Commonwealth. Unless,therefore, the act of 1835, (supra,) under the provisions of which the lessor of the plaintiff •obtained his grant, prohibited the appropriation of land thus forfeited to the Commonwealth, it is manifest that •his grant is not void on this ground.

The act of 1835 provides that no location of land •made under its provisions shall interfere with appropriations of vacant land already made by law, for the improvement of roads, rivers or bridges, although such •appropriations may not be carried into grant at the time the act is to take effect, and further, that the act shall not be construed to apply to any lands stricken off to the State for non-payment of taxes, or forfeited for non-•entry for taxation, and then concludes with the provi•sion before'cited, that “any survey or patent made or issued under this act, which interferes with any survey •or patent heretofore made or issued, shall be null and void.

The question is, what surveys are here referred to? •Did the Legislature intend such. surveys as had been forfeited by a failure to return the plats and certificates within the time limited by law? Or did it intend such surveys only as by the then existing laws, might still be ’carried into grant? No reason can be suggested why the Legislature should have extended protection to ■claims that were invalid, which in reality had no existence. But the uniform course of Legislation in this State had been, in passing laws for the appreciation of its vacant lands, to provide against the interference of such appropriations with those which had been previously authorized by law. The Legislature, therefore. *147in tbe act of 1835, prohibited any appropriation of lands which would interfere with surveys previously made, and which, according to existing laws, might still be carried into grant. This is the only rational construction of the provision in question, for it would be preposterous to suppose the Legislature intended to embrace surveys, which for many years, had been lifeless, and included lands which had been long since forfeited to the Commonwealth.

Unless the lessor have title at the date of the demise in tthc declaration, the plaintiff canno& recover.

*J. Trimble*for plaintiff; *Curry*for defendant.

The act, although it prohibits the appropriation of land in certain enumerated cases, contains no prohibition which embraces lands which had been forfeited by a failure to return the plats and certificates of survey within the prescribed time.

The Court was, .therefore, right in refusing to. give to the jury the instruction moved for by the defendant, in reference to the effect of the survey in the name of Russell, on the grant obtained by the lessor of the plaintiff.

But the demise in the declaration is alleged to have-been made on the 1st January, 1835. The patent under which the lessor of the plaintiff derives title, is dated the 4th December, 1845. He had no title-, therefore, at the date of the demise. It is well settled, that to authorize a recovery in ejectment, the lessor must have had title at the time the demise is alleged to have been made: (3 *Bibb,*297 ; 3 *Marshall,*134.) It results, therefore, that the verdict of the jury in favor of the-plaintiff, was not sustained by the evidence, and that the Court erred in overruling the defendant’s motion for a new trial.

Wheréfore, the judgment is reversed and cause remanded for a new trial, (the plaintiff to be permitted to-amend his declaration so as to make the demise subsequent to the date of his title,) and for further proceedings consistent with this opinion.