#### *Levasser v. Washburn.

July Term, 1854,

Lewisburg.

1. Nullum Tempus Occurrit Regi.*—Time does not run against the commonwealth.

2. Adversary Possession—Forfeiture of Land to State-Effect.†—Though an adversary possession of land had commenced to run against the true owner, yet upon the forfeiture of the land to the common, wealth, under the delinquent land laws, the possession, until the land is sold by the commonwealth, is no longer adversary against her, or her grantee claiming under a conveyance from a commissioner of delinquent lands.

3. Tax Titles—Forfeiture—Effect of Statute.‡—The forfeiture of land for the failure to enter It upon the commissioner’s hooks and pay the taxes and damages due upon it, was effected by the statute, and required no judicial proceeding to complete it. The forfeiture was, therefore, complete at the time fixed by the statute.

*2824. Statutes—Relinquishment of Commonwealth’s Right to Forfeit Lands—Application of Statute.—The act of March 18th, 1841, Sess. Acts, p. 31, relinquishing the commonwealth’s right to forfeited lands to a junior patentee in possession, only applies to those whose patents bear date previous to the 1st of April 1841.

5. Forfeited Lands—Effect of Subsequent Patent—Case at Bar.—A patent for-land which had been previously granted by the commonwealth, and had been forfeited under the delinquent land laws, passed nothing to the patentee; and a conveyance of the land forfeited by the commissioner of delinquent lands, passed the title vested in the commonwealth by the forfeiture.

*6.*Instructions — Obscurely Expressed.§—The court may refuse to give an instruction because it is so obscurely expressed as to leave in doubt the meaning intended.

This .was an ejectment in the Circuit court of Jackson county. The declaration contained one count on the demise of Honoré Girond, another of the president and directors of the literary fund, a third of J. E. Norvell and John De Homerg-ue, a fourth of said Horvell and Eugene Levasser, and a fifil in the name of Eugene Eevasser alone. The plaintiff, under the last mentioned count, claimed as derivative purchaser under a sale made by’ order of the Circuit court of Jackson county, under the acts of assembly in relation to delinquent and forfeited lands. A grant had issued to *one Honoré Girond bearing date on the 22nd of March 1786, for ten thousand eight hundred and forty-three and three-quarter acres; and the land thus granted having become forfeited to the commonwealth by reason of the failure of the owners to cause the same to be entered upon the books of the commissioners of the revenue in the proper county, and to be charged with taxes and damages, and to pay the same according to law, the same was reported to the court, and on the 13th of September 1841, a decree was entered, directing the land to *283be sold by the commissioner. The sale took place on the 4th Monday in November 1841, and was confirmed by the court on the 15th of April 1842. A deed was executed to the purchaser in pursuance of such confirmation on the 25th of December 1843. The declaration in ejectment was filed on the 10th of April 1847; and on the same day the defendant appeared and pleaded the general issue. The defendant Thomas Washburn claimed under a patent to himself for one hundred acres of land bearing date the 1st day of April 1841, and under a written contract which he had made for the purchase of four hundred and eighty acres of land, embracing the premises in controversy, of one James Hector, in the spring of 1836. This contract was proven to have been lost, and evidence was given of its contents. He also proved that he went upon the land in the spring of 1836, claiming title to the same, and had continued in possession down to the institution of the suit. He also proved that one Smith had settled upon the land in 1833, had held it until he took possession in 1836; claiming under one Watson, who claimed under a grant founded on an inclusive survey, which issued to one Samuel M. Hopkins on the 1st of July 1796; but he gave no evidence of any connection between his claim and that of Smith.

The grant to Girond and the proceedings of the Circuit court of Jackson county in the matter of the 'x'forfeiture for nonentry and nonpayment of taxes, the deed from the commissioner to De Homergue, the purchaser, and a conveyance from him to Bevasser, one of the lessors of the plaintiff, were given in evidence to the jury. A plat and report made in the cause under the order of the court, were also exhibited, and it appeared that the land claimed by the defendant lay within the boundaries of the tract claimed by the plaintiff.

The defendant gave in evidence the grant to Hopkins in 1796, and a conveyance from one Oliver Walcott to the said Watson, dated 22nd June 1808. After the evidence had been closed on both sides, the plaintiff moved the court to exclude the defendants’ grant from the jury; but the motion was overruled. He then asked the court to instruct the jury:

First. That the decree of the court of Jackson was conclusive as to the forfeiture of the land and the quantity forfeited; and that it was not competent for the defendant to contradict it by alleging that the land embraced by his grant for one hundred acres, was not forfeited.

Secondly. That if said one hundred acres had been before granted by the commonwealth to Girond, the grant to defendant passed nothing.

Thirdly. That the statute of limitations did not run against the state, and that it only commenced running against the plaintiff on the purchase at the commissioner’s sale in the fall of 1841.

Fourthly. That the purchaser at said sale was entitled to the land purchased by him, and that when the sale was confirmed and the deed made, the latter related back to the sale, and that he was entitled to a deed at the time of the sale.

The court declined to give the instructions in the form and terms in which they were asked for; but instructed the jury, that the decree and proceedings in forfeiture adduced in evidence by the plaintiff, were ^conclusive to show that the title under the grant to Honoré Girond had been regularly forfeited to the commonwealth, and that the rights and interests acquired b3* the commonwealth or the literary fund had been passed to the purchaser at the sale made by the commissioner under said decree; and that it was not competent to contradict such forfeiture: But that the commonwealth took nothing by the forfeiture aforesaid, other than the right, title and interests which existed in those in whose name and for whose defaults such forfeiture accrued, and as the same were at the time of the forfeiture; and she took the same in the plight and condition in which it stood at the time of the forfeiture.

The court further instructed the jury, that in as much as the patent for one hundred acres to the defendant, bore date on the 1st day of April 1841, that he could not be in a condition to take the benefit of the act of March 18th, 1841, which only applied to patents issued previous to the 1st day of April 1841, if even in other respects he had shown himself within the provisions of that statute, bv the payment of taxes, &c. ; that the purchaser at the sale aforesaid, became entitled to all the rights which had vested in the commonwealth or literary fund, by the forfeiture aforesaid, and that his deed from the commissioner, when made, related back to the time of the sale of the said land.

The court further instructed the jury, that if the statute of limitations had commenced to run by reason of the adversary possession of the defendant against the said Honoré Girond, under whom the plaintiff claims, by the forfeiture, sale and conveyance aforesaid, prior to the said forfeiture, that then and in that event the statute would continue to run, notwithstanding said forfeiture; and that if such adversary possession of the land in controversy was held by the defendant and those under whom he claimed, under a *claim of title, legal or equitable, commencing before such forfeiture, and continuing for seven years uninterruptedly, before the institution of the suit, that it would bar a recovery in this action.

The court also, in reply to an enquiry of the defendant’s counsel, expressed the opinion that the forfeiture of the land granted to Girond did not accrue or become complete “until the decree of forfeiture was entered declaring the land to be forfeited. ’ ’

To all these opinions of the court the plaintiffs excepted; and the jury having found a verdict for the defendant, he moved *284the court to set it aside and grant him a new trial. This motion was overruled, and the defendant again excepted; this bill of exceptions setting out the facts proven in the cause by reference to the first bill of exceptions in which they were fully stated. The court gave judgment for the defendant; and the plaintiff obtained a supersedeas from this court.

Fisher, for the appellant.

There was no counsel for the appellee.

*

Nullum Tempus Occurrit Regi.—For the proposition that, time does not run against the commonwealth, the principal case is cited and followed in the following cases: Calwell v. Prindle, 19 W. Va. 652; *City*of Wheeling v. Campbell, 12 W. Va. 67; Witten v. St. Clair, 27 W. Va. 769; Com. v. Ford, 29 Gratt. 688: Hall v. Webb, 21 W. Va. 322. See. in accord, Kemp v. Com., 1 H. & M. 85; Nimmo v. Com., 4 H. & M. 57; Shanks v. Lancaster, 5 Gratt. 110; Gore v. Lawson, 8 Leigh 458; Saunders v. Com., 10 Gratt. 494; Koiner v. Rankin, 11 Gratt. 420. and note; Staats v. Board, 10 Gratt. 400.

†

Adverse Possession.—Upon the subject of adversary possession, see the principal case cited in Taylor v. Philippi, 85 W. Va. 560, 14 S. E. Rep. 132. See generally, monographic *note*on "Adverse Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.

‡

Tax Titles—Forfeiture—Effect of Statute.—For the proposition that, for the failure to enter lands upon, the commissioner’s books and pay the taxes and damages due upon it, such land is forfeited to the commonwealth by force of the statute and it requires no judicial proceeding to complete it, the principal case is cited and approved in McClure v. Maitland, 24 W. Va. 574, 576; State v. Sponaugle, 45 W. Va. 426, 32 S. E. Rep. 288; Wiant v. Hays, 38 W. Va. 683. 18 S. E. Rep. 807; McClure v. Manperture, 29 W. Va. 641, 2 S. E. Rep. 765; Forqueran v. Donnally, 7 W. Va. 123; Schenck v. Peary, 21 Fed. Cas. 682: King v. Mullins, 18 Sup. Ct. Rep. 929. 931, 171 *U.*S. 404. In Read v. Dingess, 60 Fed. Rep. 27, the principal case is cited as supporting the constitutionality of the forfeiture statutes. But in that case the *282court did not find it necessary to pass upon that question. In Hornbrook v. Elm Grove, 40 W. Va. 543, 21 S. E. Rep. 852, citing the principal case, it is admitted that it is not necessary, under the forfeiture statutes in regard to lands, to have a judicial proceeding to vest the title to such land in' the commonwealth, but it is held that the forfeiture of the charter of a municipal corporation must be by judicial proceedings.

See, in accord with the principal case, *foot-note*to Martin v. Snowden, 18 Gratt. 100, where the cases are collected. See also, Smith v. Tharp, 17 W. Va. 221; Tebbetts v. Charleston, 33 W. Va. 705, 11 S. E. Rep. 23; Strader v. Goff, 6 W. Va. 257. In Morrill v. Scott, 61 Fed. Rep. 770, it is said: “It appears from the evidence in this case that the lands now in controversy were forfeited under the act of 1835, and that the forfeiture became absolute the 1st day of November, 1836, whereby the title to them vested in the commonwealth. During the time the lands were held by the commonwealth, Thomas Coleman and Henry Sherman, two of the defendants, obtained grants’from the commonwealth on the 29th of June, 1844, upon entries and surveys made in 1843. Charles Smith, another defendant, obtained his grant for the land he claimed September 20,1844. But before the defendants obtained their grants, and while 'their title was in an inchoate condition, the legislature, by a private act passed February 12, 1844, authorized the previous owners to redeem the land's by the payment into the treasury of the commonwealth of all taxes due thereon on or before the 1st day of June, 1845. It is conceded that this act was complied with by the payment of all back taxes into the treasury of the state before that time. There was, however, a saving in the act to any person having legal or equitable title to any of the lands by virtue of subsequen t grant or otherwise.

“This brings me to the consideration of the legal effect of this act; and the first question that presents itself is, were these lands liable to entry and survey, and subject to grant? As we have before seen, they were granted by the commonwealth of Virginia in 1786, when the title passed out of the state, and so remained until she' was reinvested with it under the act of 1835, holding them as forfeited and delinquent lands ; and she so held them down to the time she relinquished her right to them by the act of February 12, 1844. Atno time since the grant of 1786 were they ever held as waste and unappropriated lands, and as such liable to survey, entry, and grant. It is evident that they could not be granted as waste and unappropriated lands ; and, if liable to entry, it must be because the state held them as forfeited lands, and, by legislative enactment, made them subject to entry and grant after the forfeiture. But since the lands became forfeited, and during the time the title was in the state, there was no act of the legislature in existence that authorized the entry of forfeited lands. In fact, a grant for land forfeited for nonpaymen t of taxes was unauthorized by any law prior to the Code of 1849. Atkins v. Lewis, 14 Gratt. 30. It is true that forfeited and delinquent lands have been in some, possibly in a number of, instances, surveyed, entered, and carried into grant; but in no instance were these grants ever held valid by the courts .except where the legislature.relinquished the right of the state to the land. Such was the effect of the decision of the court in the case of *Levasser v. Washburn, 11 Gratt.*572. If this position be correct, it must follow that the lands granted to the defendants by their patents passed no title to them, in the absence of any law either authorizing them to enter the lands, or confirming their title to them.”

The principal case is also cited and followed in Carter v. Ramey, 15 Gratt. 346, and note; Atkins v. Lewis, 14 Gratt. 37, and note; Trotter v. Newton, 30 Gratt. 598 ; Holly River Coal Co. v. Howell, 36 W. Va. 489, 15 S. E. Rep. 223. See, in accord, Whittington v. Christian, 2 Rand. 353 ; Hannon v. Hannah, 9 Gratt. 146.

§

 Instructions—Obscurely Expressed.—For the proposition that, where an instruction which is so obscurely expressed as to leave in doubt the meaning intended, the court may refuse to give it, the principal case is cited and followed in Gas Company v. Wheeling, 8 W. Va. 371; Clarke v. Ohio R. R. Co., 39 W. Va. 746, 20 S. E. Rep. 701. See, in accord, Carrico v. West Va., etc., R. Co., 35 W. Va. 389, 14 S. E. Rep. 12; Boswell v. Com., 20 Gratt. 860, and note; Va. Cent. R. R. Co. v. Sanger, 15 Gratt 230 and note; Rosenbaums v. Weeden, 18 Gratt. 785, and *note.*See monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

LEE, J.

It is a maxim of great antiquity in the English law, that no time runs against the crown, or as it is expressed in the early law writers, “nullum tempus occurrit regi.” Magdalen College Case, 11 Coke 68-74; S. C. 1 Roll. R. 151; Bracton, lib. 2, ch. 5, *§*7; Britton, ch. 18, p. 29; 8 Bac. Abr. “Prerogative,” E, p. 95; 7 Comy. Dig. “Prerog.” D, 86, p. 90. And it may be laid down as a safe proposition, that no statute of limitations has been held to apply to suits by the crown, unless there has been an express provision including it. United States v. Hoar, 2 Mason’s R. 311.

The reason sometimes assigned why no laches shall be imputed to the king, is, that he is continually *busied for the public good, and has not leisure to assert his right within the period limited to subjects. Coke Litt. 90; 1 Black. Com. 247. A better reason is, the great public policy of preserving public rights and property from damage and loss through ,the negligence of public officers. Sheffeild v. Ratcliffe, Hob. R. 347; United States v. Hoar, 2 Mason’s R. 311; The People v. Gilbert, 18 John. R. 227; United States v. Kirkpatrick, 9 Wheat. R. 720-735. This reason certainly is equally, if not more, cogent in a representative government, where the power of the people is delegated to others, and must be exercised by these if exercised at all; and accordingly the principle is held to have been transferred to the sovereign people of this country when they succeeded to the rights of the king of Great Britain, and formed independent governments within the respective states. Inhab. of Stoughton v. Baker, 4 Mass. R. 522; The People v. Gilbert, 18 John. R. 227; Kemp v. Commonwealth, 1 Hen. & Munf. 85; Nimmo’s ex’or v. Commonwealth, 4 Hen. & Munf. 57; Chiles v. Calk, 4 Bibb’s R. 554; Commonwealth v. McGowan, Ibid. 62. And though it has been sometimes called a prerogative right, it is in fact nothing more than an exception or reservation introduced for the public benefit, and equally applicable to all governments. Per Story, J. United States v. Hoar, ubi supra.

Independently of the particular reason above referred to, another has been advanced, founded on the presumed legislative intention. In general, legislative acts are intended to regulate the aots and rights of citizens; and it is a rule of construction not to embrace the government or effect its rights by the general rules of a statute, unless it be expressly and in terms included or by necessary and unavoidable implication. United States v. Hoar, ubi supra; People v. Gilbert, 18 John. R. 227. *This exemption from the imputation of laches and the operation of the statutes of limitation is not confined to debts and demands of personal nature in favor of the sovereign, but extends also to lands and real estate held jure coronas. Bracton, lib. 3, ch. 3, p. 103; Lee v. Norris, Cro. Eliz. 331; Chiles v. Calk, 4 Bibb’s R. 554; Johnston v. Irwin, 3 Serg. & Raw. R. 291. And accordingly, we find it treated as a settled maxim, that there can be no adversary possession of lands against the commonwealth, and that no time will bar her recovery, or that of her grantee, against the party holding, except only in the solitary case specially provided by statute, of a settlement of thirty years accompanied by payment of taxes or quit rents within that time. Gore v. Lawson, 8 Leigh 458; Tichanal v. Roe, 2 Rob. R. 288; Shanks v. Lancaster, 5 Gratt. 110. See also Ward v. Bartholomew, 6 Pick. R. 409.

But though the general rule will not be controverted, it may be said that it will not apply in the case of a forfeiture of lands to the commonwealth for failure of the owner to comply with her revenue laws, where an adversary possession had been commenced against the former owner before the forfeiture.

It is true, in a certain sense, the commonwealth takes the land on forfeiture in the same plight and condition in which it stood at the time of the forfeiture. The commonwealth takes the estate and title of the former owner, and no other. If at the time of the forfeiture his title were absolutely bound by the adversary possession of another, it may be no title would vest in the commonwealth, unless it were saved by the existence of her lien on the land for arrears of taxes; a point upon which I express no opinion. But if when the forfeiture accrued the right of entry still remained to the owner, though an adversary possession had been cornmenced, the possession as to her *must lose its adversary character, and she must take and hold the subject with the same rights, privtheges and immunities which pertain to any other lands held by her in her demesne. I can perceive no good reason why any discrimination should be made, or why she should hold forfeited lands upon different principles and with diminished privtheges from the applying to other subjects of similar character. Certainly, the reason for exemption from. the effects of laches and inattention on the part of her public officers, is as cogent in such a case as in any other whatever. Nor have I seen any case, so far as my investigation has extended, which warrants any such distinction. The case of Hall v. Gittings, 2 Har. & John. 112, fully supports the contrary doctrine. In that case certain lands, which had escheated to the lord proprietary (under grant of the English crown) were confiscated to and vested in the state *285of Maryland under the act of October 1780, ch. 49, without office found or actual entry. Prior to the confiscation, adversary possession of the land had been taken and was held against the proj)rietary. Yet it was held that upon the passage of the act of confiscation, such possession ceased to operate against the state during the time the title was vested in her, and that the defendant could not, upon the strength of such possession, resist the right of her subsequent grantee to recover. See also Harlock v. Jackson, 1 Constit. R. (S. C.) 135.

The opinion of the court in United States v. White, 2 Hill’s N. Y. R. 59, might seem to countenance a different doctrine. It was an action on a promissory note by plaintiffs as endorsees, against defendant as maker. The defendant pleaded actio non accrevit Infra, &c., and other pleas; to all of which the plaintiffs demurred. The court said that if the statute had commenced to run before the endorsement, it would continue to run afterwards even against the plaintiffs, and *their privthege would not apply; but upon the pleadings, it held that the plaintiffs became the holders of the note before its maturity; and judgment for plaintiffs. Here then the question did not arise, and what was said by the court was obiter merelju And it might too not be difficult to show a marked difference in reference to the effect of the statute between the case of a state taking a note by contract of endorsement, voluntarily, and that of acquiring title to real estate by act of law under a forfeiture. The case of United States v. Buford, 3 Peters’ R. 12, was assumpsit for moneys claimed from the defendant upon a receipt, in which he had promised to account for the same. The plaintiff claimed an assignment to the United States from the original contracting party; more than five years had elapsed after the cause of action arose before the assignment was made, and the statute of limitations was pleaded. The Supreme court held that as the bar of the statute was complete before the assignment, the plaintiffs could not recover; but it appears to be conceded that if the statute had not run its course when the assignment was made, the character of the claim might be so changed that it would be thereafter withdrawn from its operation.

I think, therefore, that as the right of entry of Girond had not been barred at the time of the forfeiture, if that were even fixed at the time assumed by the court, the possession of the defendant after that time ceased to be adversary, and became, as said in Harlock v. Jackson, ubi supra, the joint possession of himself and the other members of the community; and that the court erred in its opinion that the statute continued to run against the commonwealth. And this view I consider is fully sustained by the opinion of this court in the cases of Staats v. Board, 10 Gratt. 400, and Hale v. Branscum, 10 Gratt. 418.

According to the decisions of this court in the cases *just referred to, and also that in the cases of Wild v. Serpell, 10 Gratt. 405, and Smith v. Chapman, Id. 445, the Circuit court also erred in its opinion as to the time at which the forfeiture under the Girond grant occurred or became complete. It appears to have proceeded *on*the notion that some inquest of office, or decree or other proceeding should have been had in order to declare and perfect the forfeiture. Nothing of the kind was necessary. The act of the 27th of February 1835, Sess. Acts, p. 11, declaring that lands which had been omitted from the books of the commissioners of the revenue should be forfeited unless the owners should cause the same to be entered and charged with taxes, and should pay the same except such as might be released by law, was intended by its own force and energy to render the forfeiture absolute and complete, without the necessity of any inquisition, judicial proceeding or finding of any kind, in order to consummate it. It was .perfectly within the competence of the legislature to declare such forfeiture and divest the title by the mere operation of the act itself, and the whole legislation upon the subject of delinquent and forfeited lands, plainly manifests the intention to exercise its power in this form. By the fourth section of the act of March 6, 1827, Supp. Rev. Code 1819, p. 314, the title to lands vested in the literary fund for nonpayment of taxes and not redeemed, is transferred in certain cases to those who may have settled and improved them under title claimed under a grant from the commonwealth. The language of the act is “that all right, title, &c.” (of the literary fund) 1 ‘shall be and the same is hereby relinquished to and vested in such person, &c.” By the second section of the act of April 1, 1831, Supp. Rev. Code, p. 345, certain delinquent lands and lands sold and theretofore redeemed by the executive under a previous act, which should not be redeemed by a *given day, were declared to be forfeited. The language of the act is, “shall be from and after (the day named) absolutely forfeited, &c. ;”—“and such lands, &c., shall be thenceforth and the same are hereby absolutely vested in” the literary fund. The eighil, ninth and tenth sections of the same act provide for transferring the title to certain forfeited and escheated lands to persons in possession under other grants in certain cases; and by the eleventh section, a mode is provided by which the occupant is to obtain a decree on petition to the proper court, investing him with the title. But by the act of March 10th, 1832, this proceeding is dispensed -with, and the title immediately vested by the operation of the act. Its language is, “all such lands, &c., shall be and the same are hereby declared to be absolutely vested in such holders, and as to those not yet forfeited, immediately after the forfeiture, &c. ; and such holder in any action brought against him for the recovery of such land, shall have the full benefit of the commonwealth’s right hereby intended to be transferred to him.” The act of *286February 1835, in similar language, forfeits omitted lands, if not assessed and the taxes paid, after the 1st of July 1836; and the title thus vested in the commonwealth is transferred to and absolutely vested in any person in possession claiming bona fide under a grant bearing date previous to the 1st of April 1831.

All these provisions, and those of similar character in other acts, would seem to be utterly incompatible with the idea of an inquest of office, or any such proceeding, being necessary to consummate or give effect to the forfeiture.

I think there is little aid to be derived in construing these statutes from the common law doctrines in relation to forfeiture of land for crimes to the crown. These acts were designed to remedy certain evils for which prompt, summary and decisive measures were *indispensable. They were intended to perform the office and perfect the remedy proposed by their own mere force and operation. Where by statute a forfeiture of goods is created, the property, by the forfeiture, is divested out of the owner without any proceeding on the part of the state, and becomes vested in the government. Coke Litt. 128; Wilkins v. Despard, 5 T. R. 112; Fontaine v. Phœnix Ins. Co., 10 John. R. 58; Kennedy v. Strong, 14 John. R. 131. Where it is of lands, the same rule should prevail if such is the plain intention of the legislature. See Barbour v. Nelson, 1 Litt. R. 60. Even at common law, though lands or goods forfeited for treason or felony, could not be seized into the king’s hands, nor granted by him to another, before attainder, yet the forfeiture of the lands • relates to the time of the offence, to avoid all subsequent sales and incumbrances; otherwise as to goods. Coke Litt. 390 b; Hale’s Pl. C. 264; 4 Com. Dig. “Forfeiture,” (B 6,) p. 412; Ibid. p. 413, and note u; 4 Bac. Abr. “Forfeiture;” D. p. 346.

By the act of February 9th, 1814, 2 Rev. Code 1819, p. 545, all previous laws forfeiting omitted lands were repealed, and all previous forfeitures of the same released; and as no provision was made subsequently in relation to such lands until the passage of ihe act of February 1835, no forfeiture could occur previous to that time. By the act of March 1836, Sess. Acts, p. 7, further time was allowed till the 1st of November 1836, for the owners of omitted lands to enter the same on the books, and have them charged with taxes, and to pay such taxes, as prescribed by the second section of the act of February 1835. But on failure of such owners to perform this duty, the forfeiture became absolute and consummate from and after the 1st of November 1836, and the provisions of subsequent laws giving time for redemption did not release *the forfeiture which . had accrued, except in such cases where the owner avathed himself of the opportunities of redemption thus afforded.

In this case, therefore, the forfeiture accrued and became complete on the 1st of November 1836, and the Circuit court erred in not so instructing the jury, instead of fixing it at the date of the decree for the sale, or decree of forfeiture, as it is styled in the bill of exceptions.

I think the Circuit court committed no error in instructing the jury, that as the defendant’s grant bore date on the 1st of April 1841, he was not in a condition to take the benefit of the act of March 1841, though in other respects he could show himself to be within the provisions of that act, because it only applied to grants issued previous to the 1st of April 1841; and thát the purchaser at the commissioner’s sale acquired all the right vested in the commonwealth by the forfeiture of the Girond title, and that his deed from the commissioner related back to the sale of the land. But I do not perceive why the court refused to instruct the jury, that if the land embraced by the defendant’s grant had been before granted by the commonwealth to Girond, nothing passed to the defendant under his grant. The court very correctly refused to exclude it from the jury, because in doing so it would have undertaken to decide that the boundaries of the grant to Girond did in fact embrace the land covered by the defendant’s grant; a matter which it was the province of the jury to determine ; but if the jury should be of that opinion, the court should have instructed them that the commonwealth’s title passed by the elder grant to Girond; and there remained nothing which could pass by the junior grant to the defendant. That before the grant to the defendant issued, the title under the Girond grant had been forfeited to the commonwealth, will give no strength to the defendant’s *grant; because it was for land entered and surveyed by him as waste and unappropriated land, and there was no act then in force authorizing forfeited lands to be entered as waste and unappropriated; the act which at one time had authorized it, having been repealed. And in the absence of such a statutory provision, no title could be acquired to such lands by entry and survey, and a patent obtained for them would be merely void. The law pointed out the mode by which the title to such lands was to be passed, and that was by sale and conveyance by the commissioner of forfeited lands, and any attempt to acquire title to them in any other mode would be utterly ineffectual. When a conveyance should be made in the mode prescribed by law, it would pass the forfeited title and overreach any intermediate grant founded upon an entry and survey; such grant not precluding the commonwealth from making a deed through her commissioner in the appointed mode, which would be effectual to pass the title vested in her by the forfeiture. Wilcox v. Calloway, 1 Wash. 38; Whittington v. Christian, 2 Rand. 353.

In the refusal of the court to give the first and fourth instructions asked for by the plaintiff, in the terms suggested by him, there was no error of which he can corn-*287plain, because the court did give in substance, if not in the same language, all and so much of said instructions as he could properly require; the portion of the first instruction which seems to have been omitted being so obscurely expressed as to leave in doubt the meaning intended; and it was for that cause, if no other, properly omitted.

With regard to the third instruction: From what I have already said, it will appear that the court erred in refusing to give so much of it as informed the-jury that the statute of limitations did not run against the commonwealth upon the facts in this case. Whether, *however the statute only commenced to run against the plaintiff from the time of the sale by the commissioner in November 1841, as the plaintiff contended, or whether the time for which the defendant held the land before the forfeiture accrued to the commonwealth, is to be added to that for which he held it after the commissioner’s sale and up to the institution of the suit, with a view to make out a bar under the statute, is a question which will require very grave consideration when it shall be necessary to decide it. In this case no such necessity exists, because giving to the defendant the benefit of his possession from the time he got the title bond from Hector under which he claimed title, until the forfeiture took place, (and he can claim nothing more because he wholly fails to connect himself in any w'ay with the anterior possession held by Smith,) and adding to it the whole period from the sale by the commissioner in November 1841 down to the institution of the suit, it will not amount to seven years’ possession, which is necessary to constitute the statutory bar. I leave this, therefore, without further comment.

For the reasons I have thus endeavored to assign, I am of opinion to reverse the judgment, and to remand the cause for a new trial.

The other judges concurred in the opinion of Fee, J.

Judgment reversed.