53 Iowa 101 | Iowa | 1880
An act of Congress approved August 3, 1854 (Lester’s Land Laws, Yol. I, page 236), provides: “That in all cases where lands have been, or shall hereafter be, granted by any law of Congress to any one of the several States and territories; and where said law does not convey the fee simple title of such lands, or require patents to be issued therefor, the lists of such lands which have been, or may hereafter be, certified by the Commissioner of the General Land Office, under the seal of said office, either as originals or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of Congress, and intended to be granted thereby.”
The lands being outside of the six miles limit of the grant, it was necessary that they should be selected by an agent of the Governor, and that the selection should be approved by the Secretary of the Interior, in order to bring them within the provisions of the grant. ' The list purports to be a list of lands selected by the agent of the Governor of the State outside of the six and within the fifteen miles limit. It is approved by the Secretary of the Interior. The Commissioner of the General Land Office certifies it to be a true and correct exemplification of the original on file in his office. Such a certificate is proper under the act making the grant, and under the act above set out of August 3, 1854. Further, section 3702 of the Code provides: “Duly certified copies of all records and entries, or papers belonging to any public office or by authority of law filed to be kept therein, shall ,be evidence in all cases, of equal credibility with the original record or papers so filed.” We have no doubt of the competency and admissibility of the commissioner’s certificate in question.
II. Attached to the foregoing list of the Commissioner of the General Land Office is a certificate of E. P. Lowe, Governor of Iowa, that the list is a correct list of lands enuring
By a resolution approved March 3, 1865, the time fixed in the eighth section of the act of June 2, 1864, was extended one year. By a further resolution of February 10, 1866, the time for completing the first section of twenty miles from the then terminus of the Burlington & Missouri Eiver Eailroad was extended to the first day of December, 1866. The certificate of the Governor was required by, and made pursuant to, the act of 1864 and the resolutions above named. It shows the completion, on the first day of October, 1866, of twenty miles westward from the terminus of the road on June 2, 1864, and the completion of the entire road, on the 26th day of November, 1869, to the Missouri river, a distance from Ottumwa, as shown by the agreed statement of facts, of two hundred and three and four-tenths miles. It was competent for the Governor to make this certificate. The statement of the terminus on June 2, 1864, was necessarily involved in what the Governor was required to certify. The certificate of the Governor shows a full compliance with the act of June 2, 1864, as amended and extended by the resolutions above referred to.
, Many objections are urged to the sufficiency of the acknowledgment which, in the view we have taken of the question, we deem it unnecessary to consider. The lease contains covenants and agreements upon the j)art both of the Burlington & Missouri River Railroad Company and of the Chicago, Burlington & Quincy Railroad Company. To be binding upon one company it must appear that it was so. executed as to be binding upon the other. There is no acknowledgment of the lease as to the Chicago, Burlington & Quincy Railroad Company. Its execution, therefore, is not proved in such manner as to render it binding upon the Chicago, Burlington & Quincy Railroad Company, and for that reason it cannot be treated as binding upon the Burlington & Missouri River Railroad Company. We do not mean to hold that an acknowledgment of the lease is necessary to its validity between the parties, but simply that an acknowledgment is necessary to its introduction in evidence without proof of its execution. It was error to admit the lease in evidence. However, if the plaintiff can derive title to the land in question through the deed, independently of the lease, the admission of the lease worked the defendants no prejudice.
Burlington & Missouri Eiver Eailroad Company,
by Alpheus Hardy, President.
Witnessed by
A. Therboubnb Hardy.
Chicago, Burlington & Quincy Eailroad Company,
by J. M. Walker, President.
Burlington & Missouri ) Attest : Eiver Railroad Co. >• seal. )
A. T. Hall, Secretary.
Chicago, Burlington &) Attest : Quincy jtaiiro&i c°. j-
I. B. Denison, AssH Secretary.
On the third day of August, 1875, the deed was acknowledged, on behalf of the Burlington & Missouri Eiver Eailroad Company, by Alpheus Hardy, before J. Henry Brooks, notary public. The certificate of acknowledgment seems to be defective. On the 25th day of October, 1878, a further certificate of acknowledgment was attached to the deed as follows:
“ State oe Massachusetts, County oe Suffolk. ss.
“Be it remembered-that on the third (3d) day of August, A. I). 1875, before me, J. Henry Brooks, then and now a notary public in and for said county, personally ajipeared Alpheus Hardy, to me known to be the identical person whose signature is attached to the foregoing instrument (viz: a deed of the B. & M. E. E. Co. to the C. B. & Q. E. E. Co.) of date July 31st, 1875, and "acknowledged the execution of the said deed and instrument to be his voluntary act and deed as such President for the purpose therein expressed and the voluntary' act and deed of said Burlington & Missouri Eiver Eailroad Company for the purposes therein expressed, at which time the said Alpheus Hardy was the president and acting for the said last named company, B. & M. E. E. Co., in the exe*112 eution. of said, deed and instrument, and the custodian of the seal of said company, which is affixed.
“Witness my hand and seal notarial this 25th day of October, A. D. 1878.
j J. Henry Brooks. ' 1Suffolk'coun^Sass.
) J. IIeNBY BbOOKS,
¡Notary Public in and for Suffolk Co., Mass.”
The éertificate to the acknowledgment of James M. Walker is as follows:
“ State op Illinois, County op Cook.
“ On this ninth day of August, A. D. eighteen hundred and seventy-five (1875), before me, Lester O. Goddard, a notary public of the State of Illinois, in and for Cook county, duly commissioned, personally came Jámes M. Walker, who is personally known to me to be the president of the Chicago, Burlington & Quincy Railroad Company, described in the foregoing instrument, and acknowledged that he signed the foregoing instrument as his free and yoluntary act, for the uses and purposes therein set forth, and that the said company also executed the said instrument as its free and yoluntary act for the uses and purposes therein set forth.
“ In witness whereof, I have hereto set my hand and official seal the day and year last above written.
( Lester O. Goddard,) ■< Notary Public, ( cook co., Illinois. S
LESTER O. GODDARD,
Notary Public.
But it cannot be doubted that the State could grant its interest in the lands, and vest' a title which would become absolute upon the performance of the conditions imposed. This is the theory of all the decisions of this court upon the subject of the grant. A contrary decision would overturn everything which has been determined respecting this grant. Section 3 of the act of May 15, 1856, provides that the lands thereby granted to the State shall be subject to the disposal of the legislature thereof, for the purposes named in the grant. This clearly confers upon the State power to dispose of the lands by legislative enactment, subject to the conditions imposed by the origianl grant.
Affirmed.