McCarver v. Herzberg

120 Ala. 523

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

PER CURIAM.

The lands in controversy are a part of the lands granted to the State of Alabama by the act of Congress, approved June 3, 1856, to aid in the construction of certain railroads, by the terms of which there was granted to the State for this purpose “every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads.” One of these roads was to run “from near Gadsden to some point on the Alabama and Mississippi State line, in the direction of the Mobile & Ohio Railroad, with a view to connect with said Mobile & Ohio Railroad;” and by a joint resolution of the General Assembly of Alabama, approved January 30, 1858, the lands granted to aid in the construction of this road were granted to the North-East & South-West Alabama Railroad Company, which afterwards, by authorized consolidation with the Wills’ Valley Railroad Co., became the Alabama & Chattanooga Railroad Company. Another of these railroads was to run from Selma to Gadsden, and by an act of the General Assembly, approved January 20, 1858, the lands granted by the act of Congress to aid in the construction of this road were granted to the Alabama & Tennessee Rivers Railroad Co., which after-wards became the Selma, Rome & Dalton Railroad Co. And still another of these roads was to run ‘.‘from or near Gadsden to connect with the Georgia and Tennessee line of railroads, throtigh Chattooga, Wills’, and Lookout Valleys ; and by an act of the General Assembly, approved February 8, 1858, the lands granted by the act of Congress ‘ ‘in aid of the construction of a railroad from or near Gadsden to some suitable point so as to connect with the Western & Atlantic Railroad of the State of Georgia, designated in said act of Congress as running •fro.m .‘Gadsden- to connect with the Georgia and Tennessee line of railroads, through Chattanooga (Chattooga?), Wills’ and Lookout Valleys/ ” were granted to ,the Coosa & Chattanooga (Chattooga?) Railroad Company. Each of these several grants was made sub-: ject to the conditions and restrictions and for the purposes specified in the act of Congress;

--.The testimony shows that the lands in controversy are situated within the six miles limit of each of the above named railroads, according to the oi'iginal survey and location thereof on file in the General Land Office at Washington, and that the Alabama & Chattanooga Railroad was completed in 1873, no. part of the Coosa & Chattanooga Railroad was ever constructed, and the Alabama & Tennessee Rivers Railroad was constructed only to Jacksonville, a point twenty-two miles distant from the lands sued for. On September 29, 1890, an act of Congress was approved by which it was declared that “there is hereby forfeited to the United States, and the United States hereby resumes title to, all-lands heretofore granted to any State, or to any corporation in aid .of the construction of any railroad opposite to and coterT minous with the portion of any such railroad not now .completed and in operation, for the construction and benefit of which said lands were granted.” The joint resolution of the General Assembly, by which the lands granted to the State in aid of the construction of a railroad from Gadsden to some point on the Alabama and Mississippi State line to connect with the Mobile & Ohio Railroad, was not offered in evidence, so far as the record shows ; but that is not of importance ■ the resolution is a public legislative act of which courts take notice. The title acquired by the State was conveyed to John Swann and John A. Billups, as trustees, with power to sell, by the deed of the Governor of Alabama made February 8, 1877, in pursuance of an act of the legislature authorizing the same. It is through two deeds executed by said Swann and Billups, as trustees, one dated June 1, 1877, conveying the N. £ of N. W. £, and the other dated May 30, 1877, conveying the S. E. £ of N. W. £, that plaintiff claims title to the land in controversy. The defendant-claims title under a homestead entry made in the year 1894, after the passage of the forfeiture act above mentioned. It is manifest, therefore, that the determination of the superiority of these respective claims must depend upon the extent of the power of the State to dispose of the lands lying within the conflicting or overlapping six-mile limits of these three roads, on the one hand, and, on the other, upon the extent of the power of Congress to declare such lands forfeited, and the effect of the exercise of such power.

The act of Congress of June 3, 1856, as frequently construed by this and other courts, vested in the State the right and title to the lands embraced in the grant from the date thereof, which right and title, when the line of each road was definitely fixed, attached to the specific sections, designated by odd numbers, lying within six miles on each side of the fixed line of the road: The granting act, however, provided that “if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.” This provision constituted a condition subsequent, for the breach of which by the failure to complete either of the roads within the time limited, the United States had the right, at any time thereafter, either by judicial proceedings or by legislative action, to enforce a forfeiture of the lands granted in aid of the construction of such road, and to resume the title thereto.—Swann & Billups v. Lindsey, 70 Ala. 507; Swann & Billups v. Miller, 82 Ala. 530; Schulenberg v. Harriman, 21 Wall. (U. S.) 44. By the acceptance of the grant, the State became the trustee of the United States, and as such its application and power of disposition of the lands was limited to the purposes expressed in the act creating the trust. The act of Congress was a law, as well as a grant, and any application or disposition of the lands by the State in violation of the terms of the act was absolutely void. One of the express provisions of the grant by which the power of the State to use or dispose of the lands was limited was, “that the lands hereby granted for and on account of said roads, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted.” In the execution of the trust, therefore, the State had no power to apply, or dispose of, to aid in the construction of one railroad, lands which had been granted to it exclusively in aid of the construction of another road, and any attempt on the part of the State to vest in one railroad title to lands granted for and on account of another, would be a mere nullity and inoperative to defeat the right of the United States, in the event of the failure to construct.the latter road, to enforce a forfeiture of the lands granted in aid of its construction, and to resume title thereto.

As we have said, the lands in controversy are within the six-miles limit of the surveyed line of each of the three railroads above named. In construing this, and similar acts of Congress, granting public lands in aid of the construction of railroads, it has become thoroughly well settled that when, by the same- statute, several grants are made for the benefit of different railroads, neither priority of location nor priority of construction gives priority of right; but where two or more roads, legally located in pursuance of the act, cross each other, or approach'each other so nearly that the limits of the primary grant for the benefit of each overlap, the grant is of equal undivided shares for the benefit of each road. St. P. & Sioux City R. Co. v. Winona etc. R. Co., 112 U. S. 720; Sioux City & St. P. R. Co. v. C., M. & St. P. R’y Co., 117 U. S. 406; Lake Superior etc. R. Co. v. Cunningham, 155 U. S. 354; C. M. & St. P. R’y Co. v. United States, 159 U. S. 372. Hence, while the act of Congress of June 3, 1856, vested in the State the entire interest in all the lands embraced in the- grant lying within the six-miles limit of each legally located road, yet the State, by the terms of the act, acquired one undivided one-third interest in the lands in controversy in trust to apply the same exclusively to aid the construction of the railroad from Gadsden to the Alabama and Mississippi State line to connect with the Mobile & Ohio Railroad; and another undivided one-third interest in trust to apply the same exclusively for the benefit of the railroad to be built from Selma to Gadsden ; and the remaining undivided one-third interest for the exclusive benefit of the road from Gadsden to connect with the Georgia & Tennessee and Tennessee line of railroads through Chattooga, Wills’ and Lookout Valleys. Holding these interests under such express trust, the State was wholly without power to divert them to other or different purposes, or to apply either share for the benefit of any railroad other than that for and on account of which it was granted, notwithstanding the latter road may never have been constructed or completed. In Chicago, M. & St. P. R'y Co. v. United States, supra, it was said: “The grant of an equal undivided moiety of lands in the overlapping limits of two roads was a grant for the benefit of each road in the particular moiety of lands dedicated by the act of Congress to its construction. Neither road could get the benefit of the moiety of lands granted for the building of the other road by reason of the failure of the company constructing the latter road to earn its moiety of the lands. This results from the explicit declaration by Congress of the purposes for which the lands were to be used, and, by express words, excluding all others. The provision that the lands ‘hereby granted shall be disposed of by said State for the purposes aforesaid only,’ precludes the idea that the State could, without a breach of trust, apply lands for the benefit of one railroad that had been granted to aid the construction of another road.” Hence, the act of the General Assembly of Alabama, approved February 20, 1883, (Acts 1882-83, pp. 62-66), which was offered in evidence by plaintiff, in so far as it was an attempt to vest in John Swann and John A. Billups, as trustees, to whom had passed by the Governor’s deed the title to the lands granted in aid of the construction of what is now the Alabama & Chattanooga Railroad, the title to the interests which had been granted to the State to be applied exclusively for the benefit of the other two railroads, was a mere nullity, and did not operate to vest any title in said trustees, or to defeat the right of the United States to enforce the forfeiture as to these interests and resume title thereto.

From what has been said it clearly results that Swann and Billups never - acquired title to more than an undivided one-third interest in the lands in controversy, either by the deed of the Governor of the State or by the act of the General Assembly above referred to, and that plaintiff acquired no greater interest through the deed of Swann and Billups. It further results that by reason of the failure to construct the railroad from Gadsden through Chattooga, Wills’ and Lookout Valleys, to connect with the Georgia and Tennessee line of railroads, and the failure to complete the railroad from Selma to Gadsden to the lands in controversy, an undivided two-thirds interest in the lands became subject to the revert-er clause of the original granting act. And being lands lying opposite to and coterminous with the uncompleted portions of these two roads, they were within the operation of the forfeiture act of September 29, 1890, and the title to said undivided two-thirds interest was, by force of said act, resumed in the United States. But the other undivided one-third interest in said lands, having been earned by the completion of the Alabama & Chattanooga Railroad, Congress had no power to declare forfeited; and it was not, in fact, included in the terms of the forfeiture act. By his homestead entry in 1894 the defendant, therefore, acquired a right to said undivided two-thirds interest superior to that of plaintiff. The duly certified copies of defendant’s homestead application and of the receiver’s certificate of entry, or receipt, were admissible in support of this right, and the trial court erred in excluding them. The certified copy of the official letter from the Commissioner of the General Land Office to the Register & Receiver at Huntsville, notifying the latter of the “cancellation of list 2 of lands selected by the Alabama & Chattanooga R. R. Company filed May 13, 1885,” would, perhaps, have been competent evidence if accompanied by evidence tending to show that the lands in controversy were affected by the cancellation.—Holmes v. State, 108 Ala. 24. But no such evidence was offered, and there is nothing in the letter itself to indicate to what particular lands it referred. On its face, therefore, the letter was irrelevant and was properly excluded on a general objection.

To the introduction of the deed from Swann and Billups, trustees, to plaintiff the defendant objected on the ground that its execution by John A. Billups had not been proven, and it was not- acknowledged by him as required by law. The certificate of acknowledgment reads : “The State of Alabama, County of-:-, I, T. G. Williams, Judge of Probate, hereby certify that John A. Billups, whose names are signed to the foregoing conveyance,” etc., the remainder being in the plural form of the acknowledgment prescribed by the statute. There is nothing either in the caption or in the body of the acknowledgment, or in the signature of the officer, to indicate in what county it was taken and certified, nor is there anything in the deed or caption thereof, as copied into the record, to indicate in what county it was executed; and for this reason, it is insisted, the acknowledgment is invalid. It is the policy of the law to uphold certificates of acknowledgment when it is possible to do so, and not to permit conveyances to be defeated by mere technical objections to the certificate, if the substance thereof complies with the form prescribed by the statute. For this purpose courts will, in proper cases, resort to well founded presumptions and to those rules of evidence which require them to take judicial cognizance of certain facts not affirmatively proven. Courts will, for instance, take judicial notice of the various commissioned officers of the State, and of their official signatures, the extent of their authority, the dates of their commissions, and the date of the expiration of their respective terms of office.—Cary v. State, 76 Ala. 78; Sandlin v. Anderson, Ib. 403. The venue of the acknowledgment as stated was simply ‘ ‘The State of Alabama.” This is prima facie evidence that the acknowledgment was taken and certified by the officer within this State, and we judicially know that T. G. Williams was, at the time of the acknowledgment, probate judge of Pickens county. We know, then, that the acknowledgment was taken in this State by an officer authorized by statute to take and certify acknowledgments within the territorial area of his county. We may, therefore, indulge the presumption, in favor of the regularity and validity of official acts of this character, that the officer exercised his functions in this particular case within the limits of his territorial jurisdiction, that is to say, in Pickens county. A precisely similar acknowledgment was upheld in Carpenter v. Dexter, 8 Wall. (U. S.) 528, in which it was said: “The words, ‘State of New York,’ present some definite locality. * * * * The commissioner of deeds in New York had authority to act only in his county ; and it will be presumed, although the State be named, that the officer exercised his office within the territorial limits for which he was appointed.” See also, Rackleff v. Norton, 19 Me. 274: Bradley v. West, 60 Mo. 33; People v. Snyder, 41 N. Y. 397. The acknowledgment was sufficient, and the deed, having been recorded -within twelve months from the date of its execution, was admissible in evidence without proof of its execution.—Code, 1896, § 992.

The evidence as presented in the record, shows title in the plaintiff to only an undivided one-third interest in the land sued for, and the court below erred, therefore, in rendering judgment in plaintiff’s favor for the entire interest.

Reversed and remanded.

The foregoing opinion was prepared by Hob. Robert C. Brickell, late Chief Justice, before his retirement from the bench, and was adopted by the present court.