Matthews v. Baker

36 Ala. 186

• Court: Supreme Court of Alabama
• Decided: January 15, 1860
• Status: Published

Opinion

A. J. ■’WALKEK, C. J.

Conceding that the entire evidence which was before the court below appears to be presented by the record, and that we can therefore revise the charge upon the effect of the evidence, we must decide the question of title against the defendant. Under the act of congress of 11th August* 1848, the legislature had the privilege of locating five hundred thousand acres of land, less the amount previously received. — 9 U. S. Stat. at Large, 281; 5 ib. 455. The only evidence of a location of the land in controversy is a certificate, under which the defendant claims, signed by the governor, and countersigned by the secretary of state. The act of the legislature of this State of 13th February, 1850, authorizes the issue of certificates by fhe comptroller, or a locating agent; and it may be (though we do not decide the point) that the certificate of the comptroller or locating agent would be prima-facie evidence that the State had selected the land mentioned in the certificate. It is clear, however, that neither the governor nor secretary of state had any authority to issue any such certificate. — Pamphlet Acts of 1849-50, p. 82. The governor’s certificate of purchase, being issued without authority, could not evidence a selection of the land by the State; and until the land was selected by the State, the title remained in the general government, and was subject to entry at the proper land-office of the United States. There was, therefore, no error in the charge given by the court.

This view of the question of title renders it unnecessary to consider the questions of evidence made by the appellant, as they could not affect the result.

Judgment affirmed.