This was an action of ejectment for a tract of land of 500 acres in Harrison county, granted by the commonwealth of Virginia to John Strobia, on the 14th day of March, 1788.
The defendants in error who were the plaintiffs below, claim the land in controversy as derivative purchasers from Joseph H. Gallego and John A. Chevallie, who were the vendees of the heirs of the patentee, John Strobia. Their deed bears date in October, 1812, and was recorded in the general court in November following.
The plaintiffs in error, who are derivative purchasers from Joseph 'Weiricfe, who purchased the land at the sales made by the commissioner of forfeited and delinquent lands for Harrison county, on the 21st of October, 1839; and claim, 1st, That the land was forfeited for non-entry under the act of the 27th of February, 1835, and the act of 1836; and, 2d, That whether actually forfeited or not, the record and decree of the circuit court of Harrison county,, under which the said commissioner made the sale, are conclusive (as to the question of forfeiture) against the defendants in error and all other persons.
On the trial the defendants tendered a demurrer to the evidence, in which the plaintiffs joined, and judgment was rendered on the demurrer for the plaintiffs.
It appears from the report of said commissioner, made to the circuit court of Harrison county, that the tract now in controversy was never on the commissioner’s books of that county in the name of the grantee, Strobia, and 'that no conveyance of the land, by him, could be found on record in said county; and that the land was therefore for*486feited. TJpon this report the court ordered the said commissioner to make sale of the land, which was accordingly done, and the sale (to "Weirick) confirmed by a subsequent decree, and the land was afterwards conveyed by the commissioner aforesaid to the purchaser.
But it also further appears from the certificates of the auditor, which are in evidence in the cause, that this tract of land was on the commissioner’s books of Harrison county, in the name of Joseph H. Gallego, and charged with the taxes for the years 1818 to 1842, inclusive, and that these taxes were fully paid.
Theaetof.the 9th of February, 1814, repealed all the laws then in force forfeiting lands for the failure of the owners to have them properly entered on the commissioner’s books and charged with taxes assessed against them, and remitted all previous forfeitures; and no law was-enacted forfeiting lands for such omission until the act of the 27th of February, 1885.
It does not appear that the tract in question was ever on ■ the commissioner’s books of Harrison county, and charged with taxes, from the time if was granted to Strobia, in 1788, until 1818, a period of twenty-five years, and it is therefore claimed by the plaintiffs in error that it was forfeited under the acts of 1885 and 1886, before cited. The land in question could not have been forfeited in 1889, when it was so returned to the court by the commissioners and ordered to be sold, either as the land of John Strobia or his heirs; be-' cause while they were the owners from 1788 to 1812, it was conveyed in the latter year by the heirs to Gallego and Ohevallie, and from 1813 to 1842, as we have seen it was on the commissioner’s books of Harrison county, (where the land lay) in the name of Gallego, and the taxes for those years all paid. At most the alleged forfeiture, for which the land was sold by the commissioner, could only operate on the ownership of Strobia, in whose name it was forfeited, and as he then had no interest in it whatever, and the land being at the time on the books in the name of *487a person claiming under him, and tbe taxes duly paid, there was no forfeiture that could effect the true owners. John v. Miller’s lessee, 12 Grat., 455.
It is also very clear that nonforfeiture as to Gallego and Ohevallie could occur under the act of 1835, as the land was then on the commissioner’s books and had been for twenty-two years previous. That act did not purport to forfeit the lands of owners whose lands were then on the commissioner’s books, but only such as were not then on the books and had not been for many years theretofore.
The other objection we are to consider is the effect of the decree and proceedings of the circuit court upon which the sale, under which the plaintiffs in error claim, was made by the commissioner.
It is insisted that as the acts of the legislature conferred jurisdiction on the court to decree sales of lands, reported as forfeited by the commissioner, it was not competent for :he owner whose lands have been sold as forfeited, upon such report, to question the correctness of the decree, or to show in |his collateral proceeding that the land was not, in fact, forfeited at the time of such sale; and that such deer ee is conclusive as to the fact of forfeiture, and consequently bound the interests and rights -of all persons whether parties to these proceedings or not. This position, it seems to me, cannot be maintained, and is wholly untenable.
"We are not called on in this case to consider what effect the record of these proceedings might have had on the rights of the grantee, John Strobia, and his heirs, in any daim they might have asserted to the land. It may be conceded that in such a case the purchaser, Weirick, and those claiming under him, would not be required to show the regularity of the proceedings under which the sale was made, according to the authority of the case of Smith and others v. Chapman, 10 Grat., 445.
But the vital inquiry is, did the decree and proceedings have the effect to divest the rights and title of Gallego and Ohevallie, then the rightful owners of the land in question? *488If they did, then the judgment complained of is erroneous. But if they did not have that effect, it is clearly right. Now, the jurisdiction of the court- in the premises, it may be observed, was a limited iwid special jurisdiction, conferred by the statute over a particular subject, namely, lands that, were actually forfeited. It did not extend to lands not forfeited. The action of the court in sueh cases is founded On the report of the commissioner, who was required to report the lands that were delinquent and forfeited, and none other. If, therefore, the construction contended'for was to prevail, it is evident the titles to land, in many instances, would rest on no better foundation than the opinion of the commissioner of forfeited and delinquent land's. Such a construction would afford no protection to the citizen, and Would tend to unsettle many of the land titles Of the country otherwise perfectly good; and to so hold, it seems to me, would be to the last-degree, harsh and Unwarranted, by'any principle Of law or justice. ■ ■
If, as claimed, the decree and proceedings in this casé had the effect to divest the title out of Gallego and Che-vallie, the real owners at the time of the sale, it is pertinent to inquire in whom did such title vest ? Certainly not in Weirick, the purchaser, for he acquired only such title and estate as was in the patentee, Strobia, in whose name the land was forfeited and sold. And as We have seen that neither he nor his heirs had any title whatever, the latter having conveyed the land to- Gallego- and Chevallie in 1812, is clear that Weirick acquired no title under sueh purchase.Smith v. Lewis, 2 W. Va. Rep., 39.
I think it clear, therefore, that the title of the bona fidt Owners of the land in question was not so divested, or in.' any wise affected by the decree and proceedings under which the sale was made to Weirick, and that such sale, as! to Gallego and Chevallie, was a nullity. If this- be not So, then the remarkable anomaly in- the law must follow, viz: that the right and title of the bona fide owners of land, WÍ0 were in no- wise in default, were divested and destroyed be*489yond remedy by a decree and proceedings, to which such owners were no parties, and consequently had no notice, and they actually defeated by a party claiming under such proceedings and decree, and yet Acquired thereby no title whatever ! A construction so obviously absurd and unjust, it seems to me, ought not to be' adopted and declared to be law. ;
My conclusion on the whole case, therefore, is that the law on the demurrer to evidence was for the plaintiffs in the action, and that the judgment of the circuit court is clearly right' and ought to be affirmed.
Maxwell, J., concurred.Judgment aeeirmed.