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Edwards v. Commonwealth.

Blackstone says the effect of a pardon by the king is to make the offender a new man, to acquit him of all corporal penalties and forfeitures annexed to the offense for which the pardon is granted, and to give him a new credit and capacity.

The same principles apply to a pardon of the president of the United States. United States v. Wilson, 7 Pet. 150. In ex parte Garland, 4 Wall. 333, the Supreme Court held that the petitioner, having received a full pardon for all offenses by him committed arising from participation in the rebellion, was relieved from all penalties and disabilities attached to the commission of his offense, and was placed beyond the reach of punishment so far as that offense was concerned; that it was not within the constitutional power of Congress to inflict punishment beyond the reach of executive clemency, and accordingly that he could not be excluded, by reason of the offense for which he had been pardoned, from continuing in the enjoyment of the right previously acquired to appear as counsellor and attorney in that court.

In delivering the opinion of the court, Mr. Justice FIELD said: "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full, it relieves the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights—it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its operation it does not restore offices forfeited, or property or interest vested in others in consequence of the conviction and judgment." And the same learned judge, in delivering the opinion of the court in the later case of Carlisle v. United States, 16 Wall. 147, said: "There has been some difference of opinion among the members of the court as to cases covered by the pardon of the president, but there has been none as to the effect and operation of a pardon in cases where it applies. All have agreed that the pardon not merely releases the offender from punishment prescribed for the offense, but that it obliterates in legal contemplation the offense itself." In Osborn v. United States, 91 U. S. 474, the court say: "It is of the very

Edwards v. Commonwealth.

essence of a pardon that it releases the offender from the consequences of his offense." And to the same effect are all the authori

ties.

By the Constitution of Virginia, the governor is empowered to grant reprieves and pardons after conviction except when the prosecution has been carried on by the house of delegates, and to remit fines and penalties in such cases and under such rules and regulations as may be prescribed by law. He is also empowered to remove political disabilities consequent upon conviction for offenses, and to commute capital punishment. Const., art. IV, § 5. It will thus be seen that certain restrictions are here imposed upon the exercise of the pardoning power which are not found in the laws of England or of the United States. But subject to these restrictions, the effect of the governor's pardon must be determined by the same rules which apply to a pardon by the British crown or by the president of the United States.

By the pardon in question therefore the plaintiff in error was not only relieved of the punishment annexed to the offense for which he had been convicted, but of all penalties and consequences, except political disabilities, growing out of his conviction and sentence. One of those consequences was the liability to which it subjected him to receive the additional punishment prescribed by the statute, in case he should be afterward sentenced to the penitentiary in this State. And that additional punishment has been imposed in this case, not by reason of the sentence for the second offense alone, but in consequence of that sentence and the sentence in the former case. Both causes must exist together to produce the effect contemplated by the statute; in the absence of either, no case is made for the imposition of the additional punishment the statute prescribes. But as the first offense was in legal contemplation blotted out, and its consequences removed by the pardon of the governor, it must be regarded, for the purposes of this case, as though it had never been committed. It follows therefore that the judgment of the Circuit Court, sustaining the demurrer to the prisoner's plea, is erroneous and must be reversed.

A like order will be entered in the case of Anderson v. Commonwealth, in which the same question is involved, and was heard with this.

Judgment reversed.

Birch v. Linton.

BIRCH V. LINTON.

(78 Va. 584.)

Infancy — coverture — disaffirmance of deed.

A female infant conveyed her land, and afterward married in infancy. On marriage she left the State. She came of age in 1858. In 1876 she and her husband brought ejectment for the land. Meantime she had been absent and silent, and the grantee had made improvements. Held, maintainable.*

JECTMENT. The opinion states the facts. The plaintiff had judgment below.

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H. O. Claughton, Charles E. Stewart and L. Marbury, for plaintiff in error.

E. Burke, for defendants in error.

HINTON, J. This is an action of ejectment brought by the defendants in error, Phillip H. Linton and Martha A. Linton, his wife, against the plaintiff in error, John T. Birch, in the Circuit Court of the county of Alexandria, to recover sixteen acres of land lying in said county, and for the mesne profits accruing during the five years next preceding the action.

During the progress of the trial the defendant requested the court to give four instructions; but it refused to do so, and in lieu thereof gave one of its own; and this action of the court constitutes the first ground of exception.

The refusal of the court to set aside the verdict which the jury found for the plaintiffs constitutes the second ground of exception.

The evidence was not conflicting, and the court has certified it as being the facts proved. It shows that on the 9th of June, 1855, Robert Birch and Mary, his wife, conveyed to his niece, Martha A. Birch, the lot of land in question, and that on the 8th day of September, 1857, the said Martha A. Birch, who was then an infant, conveyed the same land to a trustee for the sole and separate use of her stepmother, Jane C. Birch, with power to dispose of it in any manner she might think proper. This last mentioned deed was recorded on the 9th of September, 1857, and on the next day this * See Goodnow v. Empire Lumber Co. (31 Minn. 468), 47 Am. Rep. 798.

Birch v. Linton.

infant, Martha A. Birch, married her present husband and co-plaintiff, Phillip H. Linton, and went with him to the State of Maryland, where they have resided ever since.

On the 11th day of April, 1865, Jane C. Birch, her trustee and her husband uniting, conveyed the said property to the defendant. On the 22d of April, 1858, the infant, Martha A. Linton, became of age, and on the 6th of September, 1875, the present action was commenced by herself and husband.

That the conveyance of land by an infant is voidable, and that he may, after attaining his majority, affirm or disaffirm it, is now well settled. But what amounts to an affirmance or a disaffirmance by an infant of his deed seems still to be a subject of dispute, as to which there is a considerable conflict of authority. The prevailing opinion however seems to be not only that acts which would be insufficient to avoid a deed may amount to an affirmance of it, but that mere silence, for any length of time less than the statutory period, which would bar an action of ejectment, when unaccompanied by some act of a confirmatory nature, will not suffice for that purpose. Upon this point the Supreme Court of the United States, in a late case, says: "The preponderance of authority is, that in deeds executed by infants mere silence or inertness, continued for a period less than that prescribed by the statute of limitations, unless accompanied by affirmative acts, manifesting an intention to assent to the conveyance, will not bar the infant's right to avoid the deed." Sims v. Everhardt, 102 U. S. 310. And to the same effect is the statement of Mr. Tyler, an author of acknowledged merit, who says: "That by the authorities in this country it would seem ordinarily that a conveyance of real estate by an infant may be disaffirmed at any time, so long as an action of ejectment is not barred by the statute of limitations." Tyler Inf. and Cov. 70; Irvin v. Irvin, 9 Wall. 627; Drake's Lessees v. Ramsey, 5 Ohio, 254; Jackson v. Carpenter, 11 Johns. 539; Wallace v. Latham, 52 Miss. 293; Wilson v. Branch, 77 Va. 65. Accepting this as the true exposition of the law on this subject, we come now to consider both the instruction which was given and those which were refused by the court.

[Omitting other points.]

By the third instruction the court was asked to charge the jury that if the plaintiff, after Martha A. Linton became of age, permitted the defendant to expend large sums of money in the improve

Birch v. Linton.

ment of the land, without notifying him of their claim, they cannot

recover.

By the fourth instruction the court was asked to instruct the jury that if they believed that Martha A. Linton had not disavowed the deed, but allowed the grantees therein and the defendants to hold possession of the land and to expend money and labor thereon, in permanent improvements, they should find for the defendant. The first of these two instructions, in effect, affirms the proposition that mere silence on the part of the infant, for a period short of the statutory limit, within which an action of ejectment may be brought, will bar the right of the infant to recover. Such however as we have before seen, is not the law; and this instruction therefore was properly refused. As to the fourth instruction, we have only to say, that it is not necessary in this State for the infant to do more than bring his suit within the proper time; that is all the disavowal of his deed that is required by the law here. See Bedinger v. Wharton, 27 Gratt. 870; Mustard v. Wohlford's Heirs, 15 id. 329.

Upon the merits we think that there is no reason for the complaint of the defendant that the infant stood by and saw improvements being put upon this property without giving any evidence of disavowal. On the contrary, the facts clearly establish that the infant, within two days after her conveyance was made, left the neighborhood and went to another State to reside, and has never been in that vicinity but once since, and then only for a brief period. And as to the alleged improvements, it is equally clear that they were only such as were incident to the cultivation of the land, the profits of which the defendant has enjoyed. Upon the whole, we are of opinion that the judgment appealed from is right, and must be affirmed.

Judgment affirmed.

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