Opinion of the court. setting up defects in those judgments, of which neither the State of Virginia, which was a party to the proceedings, nor the Trustees of the Literary Fund, who were entitled if they were invalid, have ever complained, or sought to take advantage. On the contrary, the Auditor of the State of Virginia, its official accounting officer, recognized these judgments as valid, by making entries in his books, to the effect that the taxes were released by them. We are of opinion, therefore, that the first instruction given at request of plaintiffs was correct. The second was to the effect that if some of the defen dants had made entries and surveys of any part of the land in controversy, under which they were setting up claims to it, they were properly sued, although not in occupation of it at the time the suit was instituted. The code of Virginia, as well as that of several other States, allows the action of ejectment to be brought against persons claiming title, or interests in the property, although not in possession. It says:* "The person actually occupying the premises shall be named defendant in the declaration. If they be not occupied, the action must be against some person exercising ownership thereon, or claiming title thereto, or some interest therein, at the commencement of the suit." If then there was a part of the tract claimed by some person, on which there was no occupant, the case existed which the second clause of the section provides for. The policy of this act is obvious. It is that persons out of possession, who set up false claims to land, may by a suit in ejectment, which is the legal and proper mode of trying title, have that claim brought to this test. The act provides that such a judgment is conclusive against all the parties; and thus the purpose of the law to quiet title by a verdict and judgment in such cases, is rendered effectual. The language of the code of New York is identical with that of Virginia on this subject. And the construction we have given to it was held to be the true one, by the Supreme Court of the former State.† Chapter 185, 2. † Banyer v. Empie, 5 Hill, 48. Opinion of the court. The third and last instruction given at the instance of plaintiffs, had reference to the question of adverse possession, in its relation to the statute of limitations. Its purport was that if plaintiffs' title was found to be the paramoun title, and any of the defendants entered upon and took possession of the land, without title or claim, or color of title, that such occupancy was not adverse to the title of plaintiffs, but subservient thereto. We think this law to be too well settled to need argument to sustain it. There must be title somewhere to all land in this country. Either in the Government, or in some one deriving title from the Government, State, or National. Any one in possession, with no claim to the land whatever, must in presumption of law be in possession in amity with and in subservience to that title. Where there is no claim of right, the possession cannot be adverse to the true title. Such is the rule given as recently as 1854, by the Court of Appeals of Virginia, in the case of Kincheloe v. Tracewells.* The court there says: "An entry by one upon land in possession, actual or constructive of another, in order to operate as an ouster, and gain possession to the parties entering, must be accompanied by a claim of title."† We have thus examined the points made by the exceptions to the instructions asked by plaintiffs and given by the court. If there are points made on the instructions prayed by defendants and refused by the court not embraced in those we have discussed, they are of minor importance, and do not affect the merits of the case. JUDGMENT AFFIRMED. [See supra, p. 210, Florentine v. Barton. REP.] * 11 Grattan, 605. † Society, &c., v. Town of Pawlet, 4 Peters, 504; Ewing v. Burnett, 11 Id. 52; Angell on Limitations, ¿ 384, 890 Statement of the case. THE SLAVERS. (KATE.) 1. Where a vessel is bound to the western coast of Africa, under such circumstances as raise a presumption that she may be about to engage in the slave-trade, such circumstances, ex gr., as a professed sale at an excessive price, just before the contemplated voyage, a false crew-list, an equipment not unsuited for a slave voyage, a cargo not fully on the manifest, suspicious character or conduct, in the immediate matter, of her crew, or of other persons connected with her, an appearance and subsequent disappearance of an unknown person, with a Spanish name, as claimant,—she must clearly explain those circumstances under pain of forfeiture. 2. Persons trading to the west coast of Africa, on which coast two kinds of commerce are carried on,-one (the regular trade) lawful, the other (the slave trade) criminal,—should keep their operations so clear and distinct in their character, as to repel the imputation of a purpose to engage in the latter. THE United States filed a libel of information and forfeiture in the District Court for the Southern District of New York, against the bark Kate, her cargo, &c., alleging that she had been equipped, fitted, loaded, and prepared "for the purpose" of carrying on a trade in slaves, within the acts of Congress of March 22, 1794,* and 20th of April, 1818;† which acts make such equipping, fitting, preparations, &c., cause of forfeiture. The question, therefore, was, whether the vessel had been fitted with that purpose. The case was one of four; all like each other, in their general aspects, and reported here in immediate sequence; cases, all, where confessedly the proof of unlawful purpose was not of the most direct kind. The present case was thus: The Kate, then purporting to be owned by B. & A. Buck, of Baltimore, Maryland (C. W. Buck being master), arrived at New York from Havana on the 17th of May, 1860, with a cargo of rum, wine, copper, sugar, &c., consigned to one Antonio Ross, of New York. Six days after her arrival at New York, B. & A. Buck, by * 1 Stat. at Large, 347. † 3 Id. 450. Statement of the case. C. W. Buck, as their attorney, purported to sell the vessel to "C. P. Lake, of Brooklyn, State of New York;" the consideration stated being $10,500. [She was appraised soon after by the custom-house appraisers at $4000.] The vessel was of about 250 tons, with one deck, three masts; was 114 feet long, 26 wide, and 10 deep; sharp built, and had sixteen or eighteen spare spars and sails; there was an iron tank six feet square, for water, in the hold. She was registered on oath of " C. P. Lake, of Brooklyn, State of New York," on the 30th of May, 1860. The regis ter bond was executed on the same day, by Lake, Frederick Otto, and H. C. Smith, and describes Otto as then master of the vessel. Smith was the custom-house broker who cleared the vessel. He appeared to have cleared vessels on former occasions for the slave trade. The Kate was cleared on the 3d of July, 1860, "bound for Cape Palmas and ports on the west coast of Africa," and put to sea on that day. She had not gone far before she was seized, as mentioned hereafter, by Captain Faunce, of the United States Revenue Cutter Harriet Lane, and brought back; libelled for forfeiture, and her cargo placed in a public warehouse. A stipulation having been given for value and costs, she was released, and about the middle of September, cleared by Smith again for sea, Lake, the person above mentioned as "purchaser," swearing that "he chartered the vessel for a voyage to the coast of Africa, trading and return to New York, and that the vessel was loaded with the goods of the charterer and ready for sea on the 2d of July." The outward manifest of the cargo of the Kate, presented at the custom-house on the 3d of July, 1860, declared that it was to be landed at Cape Palmas and leeward ports, west coast of Africa, but named no consignee. It was valued at $7000, and included large quantities of rum and other liquors, beef, pork, tongues, rice, and bread, 5000 feet of lumber, 82 water-casks, filled with fresh water, hoop-iron, vinegar, iron pots, pails, drugs, &c. The lumber was piled on the water casks, and formed a flooring throughout the length of the vessel, and the cargo was over that. The shipper's Statement of the case. manifest, purporting to be of part of cargo shipped by Jose Hernandez, &c., for the same destination, and without designating either consignee or place where it was to be landed, embraced all of the goods, &c., reported in the manifest first named, and about $200 worth barrels of beef and tongues, not reported in it. After her second seizure, it was found that the vessel had on board some articles which were not reported to the custom-house; among them, bread, beef, and pork, coils of rope, zinc, lime, sand, tar, flour, rice, potatoes, globe lanterns, pewter pitchers, a surf-boat, stove, and a variety of articles of food. The boxes manifested as containing "iron pots" contained furnaces, with boilers on top, which could be used for cooking a quarter of a barrel of rice each. They were termed "boxes of hardware." The shipping articles of 3d July, which declared the vessel "bound for Cape Palmas and a market, and back to a final port of discharge in the United States," showed thirteen men besides the captain, a somewhat large crew, perhaps, for an ordinary trading vessel of the size of the Kate. The crew list appended to it was inaccurate in some particulars. All the crew were represented as having been born in the United States; whereas Otto W. Raven, the first mate, who was put down as "O. J. N. Raven, born in New York," was a German, and had begun to go to sea at Bremen seventeen years before, about which time he came to New York, and was afterwards naturalized. He had been four or five times to the coast of Africa; the last time in the bark Cora, since seized as a slaver. The second mate was entered by the American name of Francis Stevens, born in Louisiana; he was a Portuguese, named Stevo. How many of the rest were Americans did not appear. The shipping articles for the September voyage-whatever voyage it was—were in like form, with the same number of crew list, retaining the two mates and most of the men on the first, and repeating the same designations, except that Stevens was here said to have been born in New York. On the 3d of July, 1860, when the Kate first started, she |