Brue v. McMillan

57 So. 486 | Ala. | 1912

Lead Opinion

SAYRE, J.

The judge of the law and equity court of Mobile, a court exercising jurisdiction in Mobile county only, signed the bill of exceptions in this case while in Clarke county, and this fact gives appellee occasion for a motion to strike. In Rainey v. Ridgeway, 151 Ala. 532, 43 South. 843, decided at a time when, under the statute, judges might extend the time for signing bills of exception, the bill was stricken, because the judge of probate made the order extending the time for a bill while absent from his county; this on the ground that the judicial power of probate judges is limited to the territory of the counties in which they are elected. On the other hand, it Avas held, in Ex parte Nelson, 62 Ala. 376, that a circuit judge might validate a bill of exceptions while in a circuit different from that in Avhich the trial Avas had; this for the reason that his jurisdiction is co-extensive with the state. Circuit judges have the same official authority and power in one county as in another. The judge of the Iuav and equity court of Mobile has and exercises all the jurisdiction and the powers which are exercised by judges of the circuit court. — Act of August 6, 1907 (Sess. Acts 1907, p. 562). He may, when deemed expedient by him and the circuit judge, or when directed by the Governor in Avriting, sit upon the circuit bench in any county in this state. Code, § 3300. He had, therefore, authority to sign the bill of exceptions when and where he did, and the motion to strike must be overruled.

Objections taken and elaborately argued against the constitutional validity of the act of February 12, 1879, entitled “An act to further regulate the securing, preservation and sales of the swamp and overfloAved lands of the state” (Acts 1878-79, p. 198), and the act of April 4, 1911, entitled “An act to authorize the introduction in evidence of documents executed prior to February 12th, 1879, by the Governor in person or in his name by his secretary, purporting to convey any of the state’s lands, but ineffective as conveyances, and certified •copies of the record of any snch documents which have been recorded for as much as twenty years, and to prescribe the probative effect of such documents and copies,” (Gen. Acts 1911, p. 192,) have been recently considered at length by this court, as to the first-named act, in Jordan v. McClure Lumber Co., 170 Ala. 289, 54 South. 415; as to the second, in Brannan v. Henry, Infra, 57 South. 967. We find no occasion for a repetition of what was said in those cases.

This case, like those to which we have just referred, involved the title to a. part of what were the swamp •and overflowed lands patented to the state by the government of the United States. The trial was by the court; no jury having been demanded. Evidence was offered by the parties during the 28th and 29th days of March, 1911. Defendant offered as evidence of title a patent of date February 20, 1872, purporting to convey the state’s title to the Mobile & Ohio Railroad Company, as assignee of James Dunbar. This patent purported to have been executed by Robt. B. Lindsay, Governor of Alabama, by W. Y. Chardavoyne, secretary, and recited that there had been deposited in the office of the Secretary of State a certificate of the receiver of the swamp and overflowed lands of Alabama, in and for the district of Mobile, whereby it appeared that lull payment for the land had been made by James Dunbar according to the act of February 8,1861 (Laws 1861, p. 12). To this patent and its recitals, the plaintiff (appellant) objected, on the ground that the patent had not been executed by the Governor; nor was it sealed with the great seal of the state, as required by the Constitution. To the recitals, the objection was taken that there was no authority in law for the Governor’s secretary, by whom the Governor’s name had been signed to the patent, to bind the state, or any one, by the statement of the facts recited. The court took these objections under advisement, and proceeded with the hearing. On April 7th next, the court announced that plaintiff’s objections were overruled, and rendered judgment for the defendant. To this ruling and to tlm judgment, plaintiff reserved exceptions. In the meantime, the act of April 4, 1911, had been approved. When the objection was taken to the patent as evidence of title, it was well grounded in law and fact. As color of title, in connection with act of possession and ownership, it was at all times admissible, and when the ruling was. announced the objection to the patent as h muniment of title had been removed by the statute. As was held in Brannan v. Henry, supra, under the act of 1879, the patent of 1872 became in effect a transfer of the state’s original title, undisputed in this case, upon condition that the purchase money had been paid, and, under the act of 1911, it became in effect a deed subject to be defeated on proof that the purchase money had not been paid. For reasons stated in that case, the curative effect of those statutes and the rule of evidence enacted by them were operative in this case. The statute of 1911 became effective from the moment of its approval. The ruling must he judged on its merits as of the time it was made. The trial court properly overruled plaintiff’s objection to the patent for want of proper execution. The recitals of the patent were of no consequence in this case as evidence of the fact of payment. Their presence in the patent, purporting to have been issued by the Governor, or his secretary, was taken by the state as sufficient reason for the ratification and conveyance of title, which it had power to make on any consideration deemed proper. The statute of 1911 was based upon the assumption of fact, morally and legally justifiable, that the patent of 1872 spoke the truth of the transaction to which it related.

A certified copy of a map on file in the office of the state land agent, the original bearing date in 1871, ivas introduced in evidence for the purpose, perhaps, of locating the land in controversy. In this there was no error. — Barker v. Mobile Electric Co., 173 Ala. 28, 55 South. 364.

Certified copies of entries in the books kept by the State Treasurer, going to show payments for swamp and overflowed, lands, and notations in the map book in the office of the state land agent, made on the page opposite to the map, and going to show a sale of the land in controversy to James Dunbar, were admitted for the purpose, no doubt, of showing a sale to said Dunbar’ and payment of the purchase money into the treasury pf the state. Defendant showed a complete, unbroken chain of title, undenied in fact, though its effect in law was controverted, reaching back to the Mobile & Ohio Railroad Company, assignee of Dunbar. There was no effort on the part of the plaintiff to show that Dunbar had not in fact paid the purchase money. Plaintiff’s reliance was upon the defendant’s inability to prove payment. If, for any reason, there was error in the admission of the certificates and the notations from the map book, it was harmless; for, under the statute of 1911, the patent became prima facie evidence of title in the defendant. There being no attempt to defeat the title thus shown by the production of evidence that the purchase money had not in fact been paid into the state treasury, this patent became conclusive of the case. Defendant’s right and title thereunder was not affected by subsequent grants to the plaintiff. — Bates v. Herron, 35 Ala. 117; Tapia v. Williams, 172 Ala. 18, 54 South. 613.

There ivere objections to the several links in the chain of title by which the defendant connected himself with the Mobile & Ohio Railroad Company. These objections were based upon the proposition that the state’s patent to that company was ineffectual as a conveyance of title. This contention has been disposed of by what has been here said, and by what may be found in Brannan v. Henry, supra.

We find no error in the record; the judgment is affirmed.

Affirmed.

All the Justices concur, except Dowdell, O. J., not sitting.

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Concurrence Opinion

McCLELLAN, j. —

(concurring).'—On the appeal in Brannon v. Henry, Infra, 57 South. 967,1 have attached my view of an expression therein used, which recurs, in substance, in the above opinion, with respect to the effect of the Acts of 1879 and of 1911. Reference is therefore made to that appeal.