Cox v. Jones

1 Stew. 379 | Ala. | 1828

JUDGE CRENSHAW

delivered the opinion of the Court. .

By law, the register is required, as a part of his official duty, to issue land certificates; and, therefore, in the absence of proof to the contrary, they are to be considered as genuine, and what they purport to be on their face. The register is a public officer appointed by law, and we are bound to recognize him as such, and all his official acts.

But the question is, does the certificate convey to the, purchaser a freehold? By the act of 1811, ^a all persons who have made the first payment for their lands, are declared to be freeholders, for the purpose of serving on ju)ies. By the act of 1812, ^b the register’s certificate to land, is declared to vest a full legal tide, so far as to maintain any action. If then, for the purpose of serving on juries, and of maintaining actions, tht registers cer-tifioate constitute a freehold in the one instance, and vests a legal title in the other, from analogs and parity of rea-sowing, I infer that it is sufficient to support a collateral issue of freehold vel non To test the certificate by the rules of the common law, I am not prepared to say it does not vest a freehold estate. A freehold is an estate for life or greater ; the certificate may vest such an estate, good and valid against all the world, except the United States ; defeasible indeed, on failure to pay the in-stalments of the purchase money as they become due. It may be considered an inchoate legal title, vesting the estate in the purchaser or assignee, until he shall forfeit the same by not performing his part of th< contract.

[-he act of 1807 ^a provides, that no freeholder shall be sued out of the county of his permanent residence, with the exceptions therein mentioned ; and this is tie law on which the plea is predicated. In order to give a fair construction to this act, and to ascertain what the legislature intended by the expression “ freehold,” it is also proper to have a reference to the history of the country, and ihe condition of landed property at that period. And it is notorious that, at the time of passing the act, the gieatest part of the lauds of the country were unsold and unappropriated ; and that hut a small quantity in proportion, bad been granted or patented, so as to vest an absolute fee. Hence, it is no strained construction to infer, that where the legislature in the act, speaks of a freehold, they mean to embrace such an imperfect leg.d estate as is created by a sale, and certificate made and given by the register, as well as a fee simple created by grant or. patent. The result of this reasoning is, that from analogy to other statutes made in pari materia, and from a reference to the notorious condition of real property in 1807, wnen the act passed, as well as from the nature of the estate created by a land certificate, the bona fide huldei or assignee of the certificate is at least pro hacvice, constituted a freeholder within the spirit of the latter.

But it was contended that the sheriff’s return was conclusive, and not to be evaded or contradicted by the plea. This as a general rule is correct, but where the statute has created or recognized an express right or pritiit ge, it may be pleaded; anci if support, dby sufficient e» id-, ace, shall be available, even against the return of the shenff. It is not necessary to express an opinion as to the legality of the sheriff’s return. The Court are unanimous in reversing the judgement and remanding the cause.

Judge White not sitting.

a i? Laws Ala. 497.

b t;f,awsAla.248.

a Laws Ala. tiff,