# Holly River Coal Co. v. Howell

> West Virginia Supreme Court · April 16, 1892 · 36 W. Va. 489

URL: https://www.frixlaw.com/law-library/cases/6594551

## Case

- **Full name:** Holly River Coal Co. v. Howell
- **Court:** West Virginia Supreme Court
- **Decided:** April 16, 1892
- **Citations:** 36 W. Va. 489; 15 S.E. 214; 1892 W. Va. LEXIS 93
- **Precedential status:** Published
- **Opinion:** Concurrence by Brannonjimoe
- **Judges:** Brannon, Holt, Jimoe
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6594551

## Opinion text

.BRANNON, JimoE
((Joneurruu/.)
1 have never understood that a deed from the commissioner of delinquent and forfeited lands under the the Virginia forfeiture laws passed any title but that vested in the commonwealth by forfeiture. In Smith v. Chapman, 10 Gratt. 445 , the effect of a sale under them was fully considered, and Judge Lee, who was particularly learned and experienced in land-law, on page 469 says the title passed is that vested in the commonwealth by forfeiture, whether of one or more titles, saying that, if forfeited under several titles, the whole was one title acquired by forfeiture, and that passed, his language not intimating that any further title passed.
The act of March 22, 1842, § 2, enacts that, if the commonwealth or literary fund has acquired title by forfeiture in different. nanu'S,-‘all right, title, and interest which the commonwealth or literary fund may have acquired, or shall acquire, by any forfeiture of the same,” shall vest in the ■first purchaser. When thus the statute itself gives a sale under a proceeding authorized only by statute, and, proceeding only again-t forfeited land because of forfeiture, declares that the deed shall pass only title by forfeiture, how can you give it effect- to pass also the public right to waste and unappropriated landV
In Levasser v. Washburn, 11 Gratt. 572 , it was held that such conveyance passed the title, vested in the commonwealth by forfeiture. It was also held that a patent for for - *516 ■feitecl land was void, as a patent was authorized for waste and unappropriated land, not forfeited land, 'and the only way of acquiring title to forfeited land was by sale under the statute, or where it was transferred by statute to certain persons. Levasser v. Washburn, supra. This was then changed by statute. So, by parity of reasoning, waste land could be only acquired by entry, survey, and grant. There was no authority to sell it under the statute authorizing sale of forfeited lands. The statute instituting proceedings in court to sell forfeited lands was, in terms, confined to such land, and the jurisdiction was a special one, born of the statute, and limited to forfeited land. Twiggs v. Chevallie, 4 W. Va. 463 . The deed of the commissioner under a sale would not pass other title than by forfeiture on any idea of warranty by the commonwealth. Hoge v. Carrin, 3 Gratt. 201 ; Smith v. Chapman, 10 Gratt. 469 . I do not think this matter essential to the decision of the case, and I can concur, therefore, in the judgment.
Arhikmbd.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6594551. Public record. Not legal advice.