McClanahan's Administrator v. Norfolk & Western Railway Co.

96 S.E. 453, 122 Va. 705, 1918 Va. LEXIS 137

• Court: Supreme Court of Virginia
• Decided: January 24, 1918
• Status: Published

Opinions

Kelly, J.:

Assuming that the record does not show that the whole of the purchase price of the school property was paid before the appellants’ judgments were recovered, we fully concur in the views expressed and the conclusions reached by Judge Burks in regard to the liability of that property. We think further, however, that the record does sufficiently show that the purchase money was all paid before the rendítion of the judgments, and, hence, that under the doctrine of Floyd v. Harding, the school property is not liable.

As to the property of the Norfolk and Western Railway Company, we are of opinion that the defense based upon adverse possession is good.

The claim of the railway company to title by adverse possession is decisively supported by all the essential elements of such a title. Its predecessors entered into possession in 1883 under a color and claim distinctly adverse to, and in no wise in privity with, the Rorer title, and this pos-session, in most emphatic manner, had., continued exclusively, uninterruptedly, visibly, notoriously, and in hostility to all other titles, for more than twenty-three years before this suit was brought, and for nearly thirty years before the appellants asserted any claim of lien upon the property, or-attempted by amended pleadings to make the railway company a party. During these decades, the adverse occupants had expended many thousands of dollars in permanent improvements on the premises.

One of the distinct defenses of the company, as shown by both answers filed by it, rests upon the claim that its possession under Waid and Terry was adverse and hostile from the beginning and in no way connected with Rorer. In the petition upon which this appeal was granted it is said that, “the lands in the possession of the said railway company * * * were shown to be * * * the property of said Rorer. * * * The said railway company was in possession of the lot conveyed to Rorer by Trout, claiming title thereto by adverse possession * * *” The report of Commissioner Ellett, according to a statement in the petition for appeal, verified by the record, shows “that Rorer’s title to the half interest in the lot was good, that he had never conveyed that interest to any one, and that the Norfolk and Western Railway Company was in possession without any title.” The report of Commissioner Stuart shows that “counsel for the judgment creditors request your commissioner to report especially as to Norfolk' and Western office lot that there was no sale of the property by Rorer & Son, or by the said F. Rorer.” The decree of the circuit court from which the present appeal was granted contains the following paragraph: “As to the liability of the property conveyed by John Trout and wife to F. Rorer & Son, by deed dated the fifth of May, 1874, and now held and claimed by the defendant, the Norfolk and Western Railway Company, Commissioner Stuart reports that there was no sale or conveyance by F. Rorer of his interest or estate in said property, and that there was no sale or conveyance of said property by F. Rorer, or by F. Rorer & Son, or by F. Rorer and P. H. Rorer, and there being no exception to this finding in said report, said report is in respect thereto confirmed ; and the court, now proceeding to pass upon the several defenses of the said Norfolk and Western Railway Company, as presented by its answer and several exceptions to said report, is of opinion that said railway company has' held said property for more than fifteen years prior to the institution of this suit adversely to said F. Rorer and those claiming under, by or through him.” In the agreed statement of facts it appears that the Roanoke Land and Improvement Company and its successors in title, similarly claiming under the deed from Waid and Terry, continued in the actual, uninterrupted, open, notorious and exclusive possession of said land, claiming complete title thereto up to the present time, etc. The fact being conclusively shown that Rorer never parted with his title, this provision in the agreed statement of facts necessarily means that the railway company and its predecessors in title claimed a good and complete title as against Rorer. The cause has been proceeded in from the beginning by the creditors upon the claim and .theory that Rorer owned the property and nevefr sold it. This theory was sustained by the commissioners, and their finding, without any exception thereto, was confirmed by a solemn adjudication of the court. No error in this respect is or could be assigned by the appellants..

To set out in detail the- facts as to the possession of the property and its extensive improvement by the occupants would uselessly prolong this opinion. Suffice it to say that the possession of the railway company, and of those under whom it claims, began before the recovery of the judgments, and that long before this suit was brought it had acquired, by all the tests recognized in the law, as perfect and complete title as it is ever possible to acquire by a true and typical adverse possession.

The important question for decision, therefore, is,- What sort of title does adverse possession, in its true legal sense, confer? We think the answer of both reason and authority is that the title thus conferred is good against the world.

The soundness of this conclusion depends, of course, upon the construction and application of section 2915 of the Code. That section, so far as material here, is as follows: “No person shall make an entry on, or bring an action to recover, any land lying east of the Alleghany mountains, but within fifteen years * * * next after the time at which the right to make such entry or bring such action, shall have first accrued to himself or to some person through whom he claims.”

This statute in Virginia, and statutes of substantially the same tenor and effect in the other States, constitute the foundation for all title by adverse possession in this country. The ruling purpose and policy of these statutes, which must be looked to in determining their true meaning and effect, is to give stability to land titles.

“The acquisition of title to land by adverse user is referable to and predicated upon the statutes of limitations in force in the several States, which, in effect, provide that an uninterrupted occupancy of lands by a person who has in fact no title thereto, for a certain number of years, shall operate to extinguish the title of the true owner thereto, and vest a right to the premises absolutely in the occupier. The object of these statutes is to quiet the titles to land/ and prevent that confusion relative thereto which would necessarily exist if no period was limited within which an entry upon lands could be made; and they are believed to be of even more importance to the interests of society than those relating to personal actions.” 2 Wood on Limitations (4th ed.), section 254, page 1219.

“The best interests of society require that causes of action should not be deferred an unreasonable time. This remark is peculiarly applicable to land titles. Nothing so much retards the growth and prosperity of a country as Insecurity of titles to real estate.” Lewis v. Marshall (U. S.), 5 Peters 470, 477, 8 L. Ed. 195, 197.

It is not surprising, therefore, that we should find, as we do find, that, carrying into practical meaning and usefulness, this wise and settled policy and object of the statutes prescribing a limitation to actions for the recovery of lands, the authorities are practically unanimous in ascribing to them the effect of vesting in an adverse occupant who comes within their terms a new, independent and indefeasible title—one paramount to and good against that of all other persons, no matter how or when such other title may have been derived or in what form or forum it may be asserted or sought to be made effective. Less than this would not accomplish the purpose of the legislation.

The adverse occupant who has held for the statutory period does not stand in the position of a grantee from the former true owner, but his occupancy has, by authority of the State speaking through the statute, extinguished all other titles, and has vested in him an absolute and exclusive right to the possession. His title is not in any sense in privity with that of the former owner, and cannot be questioned either by such former owner or by any one claiming through him. Some expressions are to be found in the text books and decisions on this subject which, standing alone, might seem to indicate that the adverse occupant merely takes over the title of the former owner. It will usually, if not always, be found, however, that such expressions occur only in a connection which assumes1 a perfect title in the former owner, and are used only as a means of conveying the idea that adverse possession confers a title complete and perfect for all purposes. For example, if the instant case presented no question of liens, but a controversy directly between Rorer and the railway company, it would be quite natural and appropriate to say that the company’s title was as perfect and complete as if it held a deed from Rorer, for the simple reason that this case has been dealt with throughout as if Rorer’s original title was perfect. This, however, would be far from saying that the railway company’s title was derived from, or in privity with, Rorer. And so, notwithstanding utterances in the books which refer to title by adverse possession as being “as effectual as a conveyance from the owner,” “tantamount to a conveyance,” “as full and complete as could be conferred by the owner of the fee,” and the like, it is considered safe to say, after an exhaustive examination of the authorities, that no substantial support can be found upon which to base any contention that an adverse occupant, in the true legal sense of that term, takes his title in privity with, or subject to any incumbrances or defects created or suffered by, the former owner. It would be a palpable contradiction to say, as the authorities in the main certainly do say, that adverse possession confers a new and perfect title, and then to say also that the title thus conferred is liable to be defeated by defects affecting a title formerly held by some other person. No such contradiction in fact exists to any appreciable degree.

It must be understood that by “adverse possession” we mean a possession which presupposes a disseisin of the rightful occupant, and not a possession under or through the latter. It is true that in a certain sense a grantee of the rightful owner holds the land conveyed to him adversely to all the world, acknowledging title in no one and being no one’s tenant; but his possession is rightful, and there is no outstanding right of action in another upon which the statute can operate. In the instant case, there was a disseisin of the acknowledged rightful owner in 1883, and there was never a time afterwards, until the period of limitation had expired, when the right of action against the disseisor did not exist.

To summarize our conclusions, at the risk of some repetition, which we think is justified by the importance of the question, we are of opinion that the better reason and the clear and unmistakable result of the authorities is to the effect that a true adverse possession for the statutory period.confers upon the occupant a new, independent, unincumbered, indefeasible title, a weapon of defense and offense, good alike at law and in equity in all proceedings which call in question its validity or endanger its security. In short, such a title, though not derived from the former owner, is as good as it would be possible to acquire by deed from a former owner of a perfect title, or by a grant from the Commonwealth.'

“The effect of these statutes generally is, not to transfer the fee to lands from the true owner to the occupier, but to destroy the remedy of the true owner for their recovery by action, and to vest an absolute right to exclusive possession in the occupier as against the true owner and all the world, and a right which is transferable and vests in his grantees a right to the lands as full and complete as could be conferred by the owner of the fee. In a word, it vests in the occupier a title to the premises by possession, which is in every respect equal to a conveyance of the fee.” 2 Wood on Limitations, section 254, page 1220.

“He (the occupant) has an indefeasible title which can only be divested by his conveyance of the land to another, or by a subsequent disseisin for the statutory' limitation period.” 1 Ruling Case Law, page 690, section 5.

“The title acquired by adverse possession is a title in fee simple, and is as perfect as one by deed from the original owners, or by patent or grant from the government.” 1 Cyc, 1185.

“A covenant to convey a perfect title is satisfied by conveying a title acquired under the statute.” Hughes v. Graves, 39 Vt. 359, 94 Am. Dec. 331.

In s, copious note on “The Rights and Title Gained Under Adverse Possession,” 15 L. R. A. (N. S.) pages. 1255, 1257, the annotator says: “An adverse possession which has fulfilled all the legal conditions confers a good title, when completed, upon him who has maintained it. The title has been variously described as a good legal title, valid, perfect, complete, full and complete, a complete investiture of title, a fee-simple title, an indefeasible right, an indefeasible title in fee, equivalent to a grant, and an absolute and perfect title in fee-simple. The language of many of the courts can hardly be made stronger. The authorities in support of the conclusions stated are exceedingly numerous and embrace the courts of practically every jurisdiction in the United States.” Citing a multitude of cases both State and Federal.

We refer further to the following authorities, no one of which is cited as covering all of the propositions which we have announced, but which, in the aggregate, will be found to do so fully: 2 Min. Inst. (4th ed.), 577; 2 Min. Real Prop., section 1021; 1 Am. & Eng. Ency. Law (2d ed.), 883; 2 Corpus Juris. 254, and cases cited in, notes 81 and 82; Creekmur v. Creekmur., 75 Va. 430, 435; Drumright v. Hite, 2 Va. Dec. 465, 26 S. E. 583; Hollingsworth v. Sherman, 81 Va. 668; Sherman v. Kane, 86 N. Y. 57, 64; Bowen v. Suander, 121 Ind. 164; Parker v. Metzger, 12 Ore. 407, 7 Pac. 518; Leffingwell v. Warren, 2 Black (U. S.) 599, 17 L. Ed. 261; Bicknell v. Comstock, 113 U. S. 149, 28 L. Ed. 962, 5 S. Ct 399; Campbell v. Holt, 115 U. S. 620, 623, 29 L. Ed. 483, 485, 6 S. Ct 209; Sharen v. Tucker, 144 U. S. 538, 36 L. Ed. 535, 12 S. Ct. 720; Northern P. R. Co. v. Ely, 197 U. S. 1, 7, 49 L. Ed. 639, 641, 25 S. Ct 302; note to Menzel v. Hinton, 95 Am. St. Rep. 647, 672. Citations to the same effect as these might be multiplied indefinitely.

We have been referred to no case and we have found none in conflict with the views above indicated. The appellants contend that this is a suit to enforce the lien of a judgment, not an action to recover land; that, therefore, section 2915 of the Code does not apply; and that under sections 3567 and 3571 their lien is valid and enforceable. This contention loses sight of the plain terms and the governing purpose of section 2915, and, if sustained, would largely devitalize that section. It is true that under section 3571 of the Code the lien of a judgment may be indefinitely continued against the land of the judgment debtor in his possession, or of others holding titles derived from and in privity with him. This is forcibly illustrated by our decision to-day in the companion case of Moomaw v. N. & W. Ry. Co., post, page 782, in which we are enforcing the same judgments involved in the instant case because grantees of Rorer failed, like the vendee in Flanary v. Kane, to record their deeds. Hut obviously the same rule cannot be applied to strangers who have acquired a perfect legal title not in privity with but adversely to the title of the judgment debtor. In other words, the life of a judgment may be indefinitely prolonged as to any property upon which it can operate, but whenever the right of the judgment debtor to make an entry on or bring an action to recover any land held adversely is tolled by section 2915, the right of his judgment creditor to subject such land to the satisfaction of his judgment also ceases. The lien is a vested right, but surely not more so than the title to which the lien attaches, and when the statute destroys the latter it necessarily destroys the former. A judicial sale of lands to satisfy liens is not a source of title,' but merely a transmission of the title sold, and if at the time of the sale such title would not enable the holder thereof to make an entry or maintain an action, the purchaser cannot acquire any right of entry or action. To be sure, section 2915 does not mention judgment creditors or suits to enforce liens, but there is a very good reason why it does not. It was intended to protect the possession of the adverse occupant after the expiration of the limitation period, and, since judgment creditors have only such power to disturb the possession of real estate as they may acquire through the owner, there was no reason for including them in the express words of the statute. The bar of the statute becomes complete after fifteen years from the time a right of action first accrues either to the holder of the particular title in question or to some one through whom he claims. The effect of the statute is to vest a complete title in the occupant whenever the right of action has existed and remained unexercised for the statutory period. This principle is recognized in Hollingsworth v. Sherman (an action of ejectment), 81 Va. 668, 672, as follows:

“The defendants claim that the period of limitation had long since run, and their title had been perfected by reason of their adverse possession before the suit of the plaintiff was instituted. The plaintiff seeks to excuse her delay in bringing her suit upon the ground that her ancestor conveyed this property to trustees in 1824, to pay debts, and that the debts were only fully paid and the land released by the trustees in 1880, and that, until the release to her, she could not maintain ejectment. Citing Hopkins v. Ward, in this court, reported in 6 Munf. (20 Va.) 38; Syrus v. Allison, 2 Rob. (41 Va.) 200, 210; Lincoln v. French, 105 U. S. 614, 26 L. Ed. 1189; Pratt v. Pratt, 96 U. S. 704, 24 L. Ed. 805, in the Supreme Court of the United States, and Coulter v. Philips, 20 Pa. 154, and other cases.

“But the question arising in this case is not whether she could sue, or the trustees could sue, to recover the land held under the trust deed. In this case, neither the grantor in the deed, the ultimate cestuis que trust, nor the trustee did sue, until the release by the trustee; and if, as claimed by the plaintiff, she could not sue until the release to her, or until the debt was satisfied, it cannot be claimed that the person clothed with the legal title could not maintain ejectment under our statute.”

■And, so in this case, when the creditors claim that they could not sue because their rights were not invaded and they had no right of action, the answer is, as in the Hollingsworth Case, “it cannot be claimed that the person clothed with legal title could not maintain ejectment under our statute.”

Theoretically and technically, a suit to enforce a lien is not a suit to recover land, but a practical and rational application of section 2915 of the Code, in the light of its object and purpose and of the authorities to which we have referred, neither requires nor permits us to hold that a lien (which is a mere right to sell a title for debt) stops the statute from running in favor of an adverse occupancy and enables the lienor, by a judicial sale, to infuse life into a title which the statute has annihilated.

The decision in Flanary v. Kane, 102 Va. 547, 46 S. E. 312, 681, so strongly relied upon by counsel for appellants, is not, in our opinion, in conflict with the conclusions we have announced. Upon the contrary, that case, and the case of Pratt v. Pratt, 96 U. S. 704, 24 L. Ed. 805, which it follows as authority, will be found upon analysis to furnish illuminating illustrations of the true doctrine applicable to the facts of the instant case. Those cases did not involve questions of genuine adverse possession. In Flanary v. Kane, the defense was sought to be made that the defendants had acquired title against the judgment creditors by adverse possession, but as a matter of fact the possession. was not adverse. There was not in that case, as there is here, a conflict of title. The possession, so far as the former owner and his creditors were concerned, was rightful from the beginning. The so-called adverse occupant held and claimed title by, through and under the judgment debtor. The judgments were obtained after he had sold to the predecessors in title of the defendant but before the •title bond and deeds under which the defendant claimed were recorded, so that the judgments were, by virtue of the registry acts, which ruled the decision absolutely, given priority over the documentary title. As stated in the opinion, “the right of the judgment creditors to subject the land to the lien of their judgments, recovered after the judgment debtor had parted with his interest therein, resulted from the failure of his vendee to comply with the registry acts/’ In the instant case no' question under the registry acts arises, for the simple reason that the railway company does not claim as a purchaser. The distinction between the two cases is perfectly obvious. In Flanary v. Kane, the judgment debtor had parted with his title and the occupant was holding under and in privity with it;'the possession was rightful and there was no one who had the right to sue for possession. No right to sue having accrued to any one, section 2915 could not operate. The instant case presents exactly the opposite state of facts. The possession of the railway company was not under but against the title of the debtor. Borer, and there never was a time from the beginning of that adverse possession, until it ripened into a perfect title by limitation, when he did not have the right to bring his action. It is interesting to note that, as appears from the briefs which are extant and availáble, the very able and learned counsel 'representing the judgment creditors in Flanary v. Kane conceded that if the defendants had derived their title through sources different from and adverse to the title of the judgment debtor, the defense of adverse possession would have been good.

There are, undoubtedly, passages in the opinion in Flanary v. Kane which, without the light of the exact facts with which the court was dealing, would support the contention of the appellants. We do not think, however, that the court would have decided Flanary v. Kane in favor of the judgment creditors if the defendant in that case had held, as the railway company has done in this case, under an adverse title, and if the distinction which we have recognized had been as fully presented as it has been in this case. We do not question the entire correctness of the result in Flanary y. Kane.

The case of Pratt v. Pratt, supra, is likewise easily distinguishable from the present case, and illustrates, like Flanary v. Kane, the difference between a true and a so-called adverse possession. In the Pratt Case, a judgment debtor had conveyed, land which was subject to the lien of a judgment. After his grantee had been in possession for the statutory period, the judgment creditor brought a suit to enforce the lien. There was a judicial sale and the purchaser brought ejectment against the debtor’s grantee. The latter relied upon the statute prescribing a limitation (seven years) to actions for the recovery of land. The United States Supreme Court, after stating the case, said: “It is obvious from this recital that there was no one who could lawfully enter upon the land in the defendant’s (judgment debtor’s grantee) possession until the plaintiff’s judgment lien had become perfected into a legal title by sale and conveyance.” And further: “There must be a right of entry in some one else to be tolled by this seven years’ possession, and the possession must be adverse to this right of entry.” And further: “In the case before us, plaintiff sued within five years after his lien became a title. Two of the seven years’ possession on which the defendant relies was at a time when the plaintiff had no title and, consequently, no right of action, and while none existed in those from whom he derives title.” These quotations from the opinion in Pratt v. Pratt are quit'e. sufficient to show that the decision in that case was in no way in conflict with the conclusion which we have reached in the instant case.

The same distinguishing principle is affirmatively recognized in Coulter v. Philips, 20 Pa. 154, 156, cited and relied upon in Pratt v. Pratt. In that case also the action was ejectment. The plaintiff; claimed under a sale to satisfy a judgment lien, and the defendant under a so-called adverse possession. The Supreme Court of Pennsylvania held that the statute of limitations was not available as a defense, but clearly pointed out that if the title of the adverse occupant had not been derived through the judgment debtor then it could not be subject to liens against a title with which it was not in privity. The court said: “A judgment creditor acquires a lien on all the interest that the defendant has in real estate in the county, and the debtor cannot affect it by any conveyance he may make of his estate. * * * A title paramount to the defendant, or twenty-one years’ adverse possession by an intruder or stranger to the defendant, may avail to defeat the rights and remedies of a lien creditor. A possession that would bar the debtor would divest the rights of his creditor. But a party coming into possession under and according to the title of the defendant (the judgment debtor) takes it cum onere, and the creditor’s relation to the land remains unchanged.”

In LeRoy v. Rogers, 30 Cal. 229, 89 Am. Dec. 88, the material facts were as follows: A man named Leese, who held the legal title to land under a patent dated March 2, 1858, executed a mortgage to one Vallejo. The mortgage was judicially foreclosed in 1860 and the land was sold, but the deed was not delivered to the purchaser until 1862. The mortgage constituted merely a lien on the land, and was substantially the same as a judgment. At the date of the issuance of the patent to Leese, one Rogers was in possession of the land, but, as adverse possession does not run against the State, his adverse occupancy did not begin to operate until the State had parted with its title by grant to Leese. As soon as this was done, the possession of Rogers became in a true legal sense adverse to Leese, a light of action at once accruing to the latter, and the statute of limitation (five years) at once beginning to run against that right. In 1864; less than five years from the date on which the purchaser acquired his title under the foreclosure, but more than five years after the statute had commenced to run in favor of Rogers and against Leese, parties claiming under the foreclosure sale brought an action of ejectment against Rogers, who rested his defense upon adverse possession. From this statement, and from the following quotation, it will be seen that this case of LeRoy v. Rogers involved the question now before us. The opinion of the California court is so directly in point that we quote somewhat fully from it, as follows:

“The plaintiffs raise the point that they are not barred by the lapse of. time, because, as they say, their right of action first accrued in 1862, upon the execution of the sheriff’s deed in pursuance of the judgment of foreclosure of the mortgage of Leese to Vallejo. We do not find that the point has heretofore been presented to the court, but it is more plausible than real, and its solution is not difficult.

“It will not be contended that a right of action accrues successively to each of the several purchasers of the same parcel of land, in the sense in which that term is used in statutes of limitation, as. against the person in adverse possession, at the time of the first purchase. Were it so, it would be in the power of any one to avoid the statute by simply conveying the land during the running or after the expiration of the five years. The plaintiffs, to maintain their proposition, must demonstrate that a purchaser at a foreclosure sale comes in under an. independent title—that his title is not the title of a mortgagor, but a title that then first sprang into being, or is derived from a title then existing, but that did not confer the right of entry. Where one, possessing only those rights in the land that grow out of prior possession, is ousted after the expiration of five years, he is barred of his recovery; and if he .thereafter acquires the title from the general government, it may properly be said that he then acquires an independent title, and that a right of action then accrues to him against the adverse possessor. And the remainderman, upon the expiration of the particular estate, does not come in under it, but claims through an independent source of title, and he has his action though the particular estate may have been cut off from a recovery against the adverse possessor. But such is not the case with the purchaser at the foreclosure sale. His estate in the land is the estate that the mortgagor had, and he is assignee of the mortgagor, in every sense, so far as the title is concerned, that he would have been had the mortgaged premises been conveyed directly by the mortgagor, instead of indirectly and through the operation of a judicial sale. He does not differ in this respect from one who purchases at an official sale, made in .satisfaction of a judgment lien.”

If the Vallejo mortgage, in the case last cited, had not been foreclosed until 1864, and, instead of an ejectment suit by the purchaser, the case confronting the California court had been a. foreclosure suit to which Kogers had been made a party, there can be no doubt that the obvious and substantial rights of the parties would have led to the same result as that which was reached in the ejectment suit. Neither can we, in the instant case, permit a suit in equity to take the place of an action at law without applying to the equity suit the statute which was designed to bar the action. That statute, as already pointed out, did not mention equity suits to foreclose liens for the plain reason that they .are not appropriate proceedings to try title. Whenever they are so used, the bar of the statute must be recognized. (Drumright v. Hite, supra.) The statute cannot be nullified by indirection.

The decision in LeRoy v. Rogers evidently proceeds upon the sound theory that a judicial sale is a mere means pf transferring title, and that the application of the statute does not depend upon the form of the creditor’s remedy, or upon his right to sue, but depends upon the existence or non-existence, during the statutory period, of a right of action in the title upon which the lien rests.

The decision in LeRoy v. Rogers also furnishes a convenient answer to the suggestion that adverse possession against a life tenant does not bar an action by the remainderman, and that for a like reason it ought not to bar a creditor, since the adverse possession invades the rights of neither. The remainderman “does not come in under” the particular estate, “but claims through an independent source of title.” See also Pryor v. Winter, 147 Cal. 554, 558, 82 Pac. 202, 109 Am. St. Rep. 162. So, too, an owner of the minerals under a title which has been severed from the title to the surface, is not affected by adverse possession of the surface, because there has been no disseisin as to the minerals, and neither such owner nor any one for him has any right of action against the - adverse occupant.

We are not without Virginia authority which seems to us directly in point. In the case of Virginia & West Virginia Coal Company v. Green Charles, reported in 3 Va. Law Reg. (N. S.), at page 492, the effect of a tax lien, as against a title by adverse possession is interestingly discussed. The opinion is by Judge Henry C. McDowell, of the District Court for the Western District of Virginia, whose recognized learning, ability, and wide experience at the bar and on the bench with questions involving the land laws of Virginia entitle his views to great respect. He deals with the question as follows:

“Under statutes such as those of this State, the title of the tax purchaser is a derivative title. McDonald v. Hannah, 51 Fed. 73, 74; McDonald v. Hannah, 59 Fed. 977, 980. See Blackwell Tax Titles (1st ed.), sections 232-3, page 548: ‘Where the law requires the land to be listed in the name of the owner of the fee or of any other interest in the estate, provides for a personal demand of the tax, and, in case of default, authorizes the seizure of the body or goods of the delinquent in satisfaction of the tax, and, in terms or upon a fair construction of the law, permits a sale of the land only when all other remedies have exhausted, then the sale and conveyance by the officer passes only the interest of him in whose name it was listed, upon whom the demand was made, who had notice of the proceedings, and who alone, can be regarded as legally delinquent. In such case the title is a derivative one, and the tax purchaser can recover in ejectment only such interest as he may prove to have been vested in the defaulter at the time of the assessment.’ If the contention of the plaintiff be upheld, we must construe section 661 as being in conflict with section 2915—the statute of limitation. ‘No person shall * * * bring an action to recover any land lying west of the Alleghany mountains but within ten years next after the time at which the right * * * to bring such •action shall have first accrued to himself or to some person through whom, he claims.’ But if section 661 -be construed as'the defendant contends this conflict is avoided, and this fact affords a reason of some weight for adopting the construction of section 661 above chosen. 36 Cyc., page 1146; 26 Am. & Eng. Encyc. 616-17-18; Black Interp. Law (1st ed.), page 17, 60-61; 1 Fed. Stats. Ann. XCHI, 31-b; Sutherland Stat. Constr. (1st ed.), section 288.

“Counsel for plaintiff build up a somewhat plausible argument on the decisions holding that the State’s lien for taxes is a paramount lien. It is true that Pearson could not have encumbered the land by any lien, even to the suffering of a-judgment lien, either before or after the first of January, 1876, which would not have been subordinate to the tax lien and which would not have been extinguished by the tax sale. It is also true that a sale, or devise of the land, by Pearson, o'r a transmission of Ms title by descent, after the said date could not affect the validity of the tax sale. But it does not follow that the ripening of Ratliff’s title by adversary possession is also nullified by the tax sale. The difference is that all such lienors, vendees, devisees or heirs acquire their rights through and under Pearson. Ratliff acquired his right in opposition to Pearson. Any one who acquired a lien on the. land from Pearson’s predecessors in title, and any one who acquire a lien on or the ownership of the land from or under Pearson, are his privities in title. Ratliff is a stranger to the Pearson title.

“Counsel ask what would have been the result if the tax sale had been held on January 2, 1879. I think the answer is that the State would in such event have offered a wholly worthless tax title for sale. It is perfectly true that, if the Pearson title was in 1876 a valid title, by assessing Mm with the taxes for that year the State acquired a valid and valuable lien on the land. But there is certainly no Virginia decision, so far as I know, which holds that delay in foreclosing this lien, accompanied by the ripening of an adverse possession of the land by a stranger to the taxpayer, may not make the lien valueless. And I can see no reason why the result should be otherwise. If the position I take be sound, it is entirely true that a well advised proposing tax purchaser would not buy at a tax sale, where an adversé title had ripened before the tax sale is held, or will ripen so soon after the tax sale that suit cannot be instituted before the adverse- title ripens. And it follows that the tax lien is, or may be, in such- case valueless.”

The italicized language appearing- in the above quotation from Judge McDowell’s opinion indicates the weakness in the appellants’ position in this case. It is true that here they are seeking to pass the title of Rorer and to try the railway company’s title in the same proceeding, thus avoiding an action of ejectment against the latter. It cannot, however, be seriously contended that the substantial rights of the parties can be affected by the form of the procedure. The vwrchaser must claim under Rorer, and must, therefore, come within the plain language of section 2915 of the Code, which, in terms, bars an action not only as to the party to whom the right first accrued (Rorer) but as to those claiming through him.

We are of opinion, therefore, that the property of the Norfolk and Western Railway Company is entitled to immunity from the lien of the appellant’s judgments on the broad ground that a true adverse possession confers a perfect title free from defects created or suffered by the former owner. We have, however, alreády pointed out that the judgments' owned by the appellant were recovered after the adverse possession had commenced to run against Rorer. In the light of this fact, there is another and further very strong view of the effect of adverse possession in this case which is forcibly presented by Judge Sims in a separate opinion handed down by him, 'and in which he concurs in the result arrived at by us; and inasmuch as it is not essential to the decision in this ease that we should go further, a majority of the court is of opinion that the decision herein should be limited as a precedent to cases in which liens have been obtained subsequent to the beginning of the adverse occupant’s claim of title. (See 1 Min. on Real Prop., section 145, page 182.)

The suin and substance of our decision is, that any title to the property claimed by the Norfolk and Western Railway Company which could be acquired by virtue of the-lien of the judgments asserted in this suit would be a title held under Rorer; that the right of action to assert such title would be in terms barred by section 2915 of the Code; and that the effect of this section cannot be avoided by resorting to a chancery suit. We have not held that the creditors could not sell the right, title and interest of Rorer himself and pass such rights as he would have to the purchaser at a judicial sale. This could have been done in the instant case either, (1) by originally omitting the Norfolk and Western Railway Company as a party, or (2) by dismissing the cause as to that company when the character of its title was disclosed, or (3) by a decree for sale, subject to the right of the company to assert that title in any action ■at law by the purchaser at the judicial sale. The appellants have not asked for or desired such a sale. Manifestly it would avail them nothing.

We do not decide the question raised by counsel in the. instant case as to whether the railway company can be .regarded in the light of the facts as a proper party. There is certainly very respectable authority to support the view that it cannot be so regarded. Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Banning v. Bradford, 21 Minn. 308, 18 Am. Rep. 398; Croghan v. Spence, 53 Cal. 15. Bfut while passing this question, we may well suggest that if the- railway company had never been made a party, and there had been a judicial sale of the property to satisfy the judgments, the purchaser would necessarily have stood just where Rorer would stand, and could, no more than he. recover the premises. Such purchaser, as in LeRoy v. Rogers, supra, would be powerless in the face of the railway company’s adverse possession which has not only extinguished the Rorer title but created and conferred on the defendant company a brand-new and indefeasible one, which cannot be sold for Rorer’s debts. See Va., etc., Co. v. Charles, supra.

Dealing with the case as it is, however, and assuming that the question of title between a judgment debtor and an adverse claimant can be tried in a suit to enforce the judgment lien, then the statute of limitations must be held to protect the adverse claimant if he shows, as the railway company has done in this case, sufficient facts as to the character and duration of his possession. As Judge Riely said in Drumright v. Hite, supra, “If a legal right would be barred in a suit to enforce it in a court of law, it or an. analogous equitable right will be likewise barred in a suit to enforce it in the equitable forum.”

• We are not at all satisfied that there are not other grounds (two of them discussed by Judge Burks) upon which the decree as to the railway company should be affirmed, but we are content to rest our decision upon the defense of adverse possession.

Except as indicated herein, we concur in all respects in the opinion delivered by Judge Burks.