Jordan v. McClure Lumber Co.

54 So. 415 | Ala. | 1910

MAYFIELD, J.

The original hill in this case was filed under chapter 127 of the Code of 1907 (sections 5443-5449) to quiet and determine claims to land. It was subsequently amended so as to ask additional relief in having respondents’ title canceled as a cloud upon that of complainants’.

Complainants (appellees here) claim title through the Mobile & Ohio Railroad Company, which company, in turn, claimed title under instruments in form patents from the state of Alabama, dated February 20, 1872, and which were not properly signed by the Governor and attested by the Secretary of State, as the law directs, but were signed by one Oliardavoyne, the private secretary of the Governor. None of these patents bore the great.seal of the stale, but had stamped upon them what purported to be a seal of the “Land Office of Alabama.” These purported patents were issued to the said railroad company as the assignee of various land certificates issued of date February 12, 1872, to various persons under act' of the Legislature of Alabama of 1861 (page 12), relating to sale and disposition of swamp and overflowed lands. The purported patents recited, in substance, that the Mobile & Ohio Railroad Company, as assignee of such land certificates, had deposited the same with the receiver of swamp ancl overflowed lands of Alabama, whereby it was made to appear that full payment had been made for the lands described therein by the original holders of the certificates, as was provided by act of the Legislature of February 8, 1861 (page 12), and that the same lands had been purchased by the Mobile & Ohio Railroad Company as assignee of such certificates. Such purported certificates were not recorded in the office of the Secretary of State, but in the tract books of his office were entered the numbers of the certificates, the names of the parties to whom issued, a description of the lands, and the purchase price in each particular case. These patents, however, were recorded in the probate office of Washington county, the situs of the land, on January 23, 1886. The Mobile & Ohio Railroad Company conveyed the lands on May 1, 1876, by a deed of trust, and the trustee therein named conveyed the lands on July 7, 1890, and thereafter the grantees in that deed and their assignees claimed the lands and assessed and paid the taxes each year. The lands are open pine lands, well timbered, and were not utilized for any purpose until the winter of 1906-07. About this time the pines of these lands were boxed for turpentine purposes by the appellees, and have since been used for that purpose. The original patents in form, or certified copies thereof, as to all these lands, are in evidence.

It also appears that on February 20, 1872, the receiver of swamp and overflowed lands paid into the state treasury $20,000 as proceeds of sales of swamp and overflowed lands, and shortly thereafter made additional payments which made the aggregate $27,348.31. The tract book of Washington county, Ala., purports to show that each one of the various holders of these land certificates who subsequently assigned to the Mobile & Ohio Railroad Company acquired the respective tract of land described in his certificate as early as February 12, 1872. The Mobile & Railroad Company claimed these lands from the date of the purported patents, to wit, February 20, 1872, to the date of the sale by their trustees, to wit, July 7, 1890, averring' that during this claim it had agents who looked after all its lands, these included; that these lands were in litigation as the lands of the railroad company while in the hands of a receiver; that it several times mortgaged the lands; and that the mortgages were recorded in the county of the situs of the lands. The railroad company contracted to sell these lands, and this contract was enforced in the courts in a suit by the trustee of the railroad company and Wager & Wells, who were assignees of the contract of sale, and these parties from that time till they parted with their rights claimed to own and held possession of, the lands for themselves and associates from 1890 to 1902, when they sold and delivered possession to these complainants (appellees here), who have ever since continuously claimed, and exercised some kind of ownership over, the lands, until the winter of 1906-07, when they were for the first time practically utilized by the boxing of the pines for turpentine, as before stated, after which the use for this purpose for several years at least is shown to have been necessarily continuous and open occupancy, during which time the parties maintained houses on the lands for their laborers, and built roads over and across the same.

There was an act of the Legislature of February 12, 1879 (pages 198-199), the titles of which was: “To further regulate the securing, preservation, and sale of the swamp and overflowed lands of the state.” Section 3 of this act, among other things, provided: “That the titles of all persons or corporations who at any time prior to the passage of this act, shall have purchased any part of the swamp and overflowed lands belonging to this state from any person or persons acting as agent or receiver, or professing to act as agent or receiver of this state, for said swamp and overflowed lands, and the purchase money of which has been paid, be and the same are hereby confirmed unto said purchasers, their heirs, successors and assigns, and all the right and title which this state may have, or may have heretofore had, to any part of said lands so purchased is hereby relinquished, and forever confirmed to and unto the said purchasers, their heirs, successors and assigns. * * ‘V’ On November 26, 1888 (see Acts 1888-89, p. 5), was passed an act, the title of which was, “An act for the relief of purchasers of swamp and overflowed lands, or lands in lieu of the same which have been or may be hereafter patented to this state.” That act reads as follows: “Section 1. Be it enacted by the General Assembly of Alabama, that the Governor of the state be empowered and he is hereby authorized to issue a patent to the purchasers of the swamp and overflowed lands or the lands in lieu of the same, which may have been patented to this state, or which may hereafter be patented to this state upon satisfactory proof being made to him that such lands have been fully paid for either in money, or in scrip sold and transferred by him and authorized by the acts of Congress to be received in payment of such lands.” On December 17, 1873 (Acts, p. 65), an act was passed which provided for the adjustment of the claims of persons for services with respect to swamp and overflowed lands, which recited, in its preamble, that the swamp and overflowed lands were sold by the state, and then provided that the claims should be paid out of the proceeds of the sales of these lands. On January 31, 1875 (Acts 1874-75, p. 137), an act was passed which recited in its preamble that the swamp and overflowed lands had been in part sold by its agents, and the sum of $27,343.31 had been paid into the state treasury, and the act proceeds to appropriate this sum to the Alabama Insane Hospital, reserving' a part to pay the expenses of procuring and selling the lands. It will be observed that this is the exact aggregate amount shown to have been paid into the state treasury on February 20, 1872, with the two additional payments made soon thereafter, and that the patents and land certificates as for the lands in this case purport to show that the purchase price for the lands in question was paid to the receiver on or before the 13th of February, 1872, the date of issuing the certificates.

On February 9,1877 (Acts 1876-77, p. 77), another act was passed to provide for the appointment of a commissioner for the swamp and overflowed lands. This act recognized that there liad been previous sales of those lands, and provided that the commissioner should investigate such sales and report the result to the Governor, and take possession of such lands as had not been sold, and sell the same; but there is no proof that such commissioner ever took possession of these lands or attempted so to do.

The respondents, appellants here, claim title by deed and purchase of October 17, 1908, from the trustees of the Alabama Insane Hospital, who, in turn, claimed under a grant from the state by virtue of an act of the Legislature of October 1.0, 1903 (page 495), now sections 879 et seq of the Code. Demurrers to the bill were overruled, and the case was finally submitted on the bill, the answer, and the - voluminous proof by both parties; and on the hearing the chancellor granted the relief prayed in the bill, from which decree respondents appeal, assigning appropriate errors.

The bill was in all respects sufficient and fully explicit, complied with all the statutory requisites of a bill to quiet title, and determine claim to lands. — Chapter 127, Code. The scope and prayer of the bill was properly extended by amendment so as to cancel a cloud on title, and the amended bill was in all things sufficient to support the prayer for relief, and the decree which was rendered.—Smith v. Gordon, 136 Ala. 497, 34 South. 838; Fowler v. A. I. & S. Co., 154 Ala. 497, 45 South. 637; Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528. The bill sufficiently alleges title and possession to maintain the statutory bill, and also the prayer for additional relief of removing a cloud from title. It alleged actual occupancy under claim of absolute ownership, and denied any title or valid claim on the part of the respondents. It was sufficient in all respects for the purposes for which it was filed, and to test at least the equitable title to the land.—Higdon v. Kennemer, 120 Ala. 198, 24 South. 439; Pomeroy’s Eq. Pl. § 732. The deeds and patents sought to be canceled constituted clouds upon complainant’s title if the allegations of the bill were true. —Parker v. Boutwell, 119 Ala. 301, 24 South. 860; Rea v. Longstreet, 54 Ala. 291. It is not at all necessary that complainants’ bill and proof should have shown the legal title in order to authorize the relief prayed or decreed. A perfect equity is sufficient, or actual possession as against those who show no superior title or claim.—Brand’s Case, 128 Ala. 579, 30 South. 60; Fowler’s Case, supra. It has, however, been uniformly held that, in order to maintain a statutory bill like this, the complainant must allege and prove a peaceable possession as distinguished from a scrambling one. The statute, as well as the decisions, require this.

It is insisted by the appellants that the proof failed to support this necessary feature of the bill. In this, however, they are in error. The agreement of counsel, together with all the proof, shows that complainants were in possession at the time of the filing- of the bill —in the actual possession. It is true that the evidence shows that some of their employees were ordered off the lands by the respondents, and that the latter posted notices on the land warning complainants not to trespass thereupon. This was, however, a mere adverse claim of title. It was not possession on the part of the respondents such as to defeat the bill. In fact, it was this very claim of title or right on the part of the respondents which authorized the filing of the bill against them. This is the very kind of disputed claim or title which the statute is intended to quiet or determine. Merely going upon lands which are at the time in the actual possession of another, and claiming title thereto and warning such other off, is not such possession as will maintain or defeat a bill filed under the statute. It requires actual possession or constructive possession; and while it must be peaceable, it does not mean that the right or title thereto must not be disputed, for that is what the. suit is intended to determine and quiet. The real object and purpose of the suit is to determine whether respondents have any title, right, or claim, legal or equitable, in the lands the subject of the suit; and, if so, to determine its character and extent. In order to do this, it' becomes necessary, owing to the undisputed facts in the case, to first determine whether or not the complainants have a perfect equity or a legal title; for the reason that both parties claim through a common source (the state of Alabama) and the respondents unquestionably have, title, both paramount and legal, unless the title, legal or equitable, had passed out of the state before the grant of the swamp and overflowed lands to the hospital, and provided that these lands in question passed by that grant. On the other hand, if the complainants had acquired the legal title ór a perfect equity, before the grant by the state to the hospital, then, of course, the hospital acquired no title by reason of the grant, and did and could convey none to these respondents.

There is a written agreement in this record shown between the parties to the appeal, or their attorneys, as to many of the facts of the case, which agreement the reporter will set out in full; for upon it or upon some of its recitals, in a large measure, must depend a correct decision of this case. The following are some of the recitals of that agreement which we deem material and conclusive of the rights of the parties to this suit:

“That all of the lands in controversy in all of said cases are what are known as ‘swamp’ and ‘overflowed’ lands, and were certified and patented to the state of Alabama by the United States under and pursuant to the act of Congress of the 28th day of September, 1850.”

“That Henry St. Paul, as a swamp land commissioner or agent of the state of Alabama, and John R. Thompkins, as a receiver, appointed by the. Governor of Alabama under the provisions of the act of February 8, 1861, executed and issued the hereinafter named certificates, all dated February 12, 1872, numbered as and for the lands, hereinafter shown, each of which certificates recited that the party to whom it issued had purchased and/paid for the lands therein described.”

“That each of said certificates purports to be assigned to the Mobile & Ohio Railroad Company, and thereafter, so-called patents were issued to the Mobile & Ohio Railroad Company. Each of said patents was signed, as follows: ‘Robt. B. Lindsey, Governor of Alabama, by W. V. Oliardavoyne, Secretary.’ Tliat tbe said Ohardavoyne was the private secretary of Robert B. Lindsey, .Governor of Alabama. That the only authority that the said Ohardavoyne had for signing said patents was a general instruction by the Governor to his secretary to sign the Governor’s name to such patents for swamp and overflowed lands as properly and legally should be signed by the Governor. That none of said patents had affixed thereto the seal of the state of Alabama, but each of them had affixed thereto and impressed thereon, and recited therein a seal containing the words ‘Land Office of Alabama.’ That none of said patents were attested by the Secretary of State. That all of said so-called patents were dated February 20, 1872.”

“That all of the lands in controversy in the cases above stated were and are what is known as pine timber lands, being covered with a growth of fine pine timber, which timber constitutes by far the greater value of said lands. That during the winter of 190(5-07, and the spring of 1907 complainants, through D. R. Lewis Naval Stores Company, boxed for turpentine substantially all of the trees upon the lands involved in the three cases above mentioned, and worked the same for turpentine in the usual manner up to this time.”

“That either party to either of said causes may introduce on the trial any legal evidence of any material facts not in conflict with this agreement, the purpose hereof being to reduce to an agreed state of facts those facts about which there is no controversy, and to leave the parties to said causes free as to all other matter.”

The patents thus issued to the Mobile & Ohio Railroad Company were not properly executed as the Constitution and the statutes prescribed, and were therefore ineffectual to pass the legal title to the lands described therein; but they do serve as ancient documents and color of title.

These certificates or receipts, and the so-called patents, all being shown and admitted to be ancient documents more than 30 years of age, and the certificates or receipts all purporting to be assigned to the patentee, the Mobile & Ohio Railroad Company, before the patents were issued (which was February 20, 1872), they were all self-proving documents; there being no circumstances casting suspicion, on their genuineness. The issuance of the documents by the persons purporting to have issued them and that they were issued more than thirty years ago being admitted, they need not come from the proper source or even be exhibited to the court for inspection as to genuineness and age, for this is all that an inspection or that evidence that they come from the proper custody ivould avail.—Woods v. Montevallo Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393, and authorities there cited; 2 Wigmore on Ev. 1257; Jones on Ev. 308. In fact, this court has held that certified copies of documents which purport to be over 30 years of age and which have been recorded for 20 years are self-proving.—Allison v. Little, 85 Ala. 516, 15 South. 221; White v. Hutchings, 40 Ala. 257, 88 Am. Dec. 766. These cases have been modified by the later case of O’Neal v. T. C. I. & R. R. Co., 140 Ala. 378, 37 South. 275; but not as to the proposition announced above. That case merely decides correctly that age cannot give validity to a document void on its face. Moreover, all explanations as to the source from which the documents came and the custody is rendered certain by the proof. The only reason of the rule that the ancient document shall come from the proper depository is that credit is thereby given to its genuineness. No one depository or custody is considered the necessary one. All that is required is that it be a natural one, and that its appearance be unsuspi-cious, Avhich are questions for the trial court. — Wig-more on Ev. 2139. The patents were recorded, and recite that the patentee, as assignee of the holder of the certificate, had deposited the certificate or receipt in the office of the Secretary of State. This was for the ■evident purpose of obtaining the patent, and was the authority of the state for issuing the patent — it reciting the sale, describing the land, the parties, the transfer, and the payment of the consideration. The fact that the patent was invalid because not properly executed does not change the rules of evidence as to ancient documents. The so-called patents recited on their face most all of the material facts shown by the receipts; and what they lack the agreement supplies.

This being true, it therefore conclusively appears that the officers who were authorized so to do sold these lands to various parties named in the receipts or certificates of purchase, who paid the purchase money therefor, and that these certificates were transferred or assigned to the Mobile & Ohio Railroad Company, to which corporation the state attempted to issue patents, but failed for the sole reason that the patents were not executed in the mode provided by Law; and it sufficiently appears that the proceeds of these sales were paid by the state’s officers into the state treasury, and were thereafter appropriated by the state as funds received from such sale, and that the sales were thereby and thereafter ratified by the state, through its Legislature, the proper source of power to ratify.

It is insisted that no sales are shown because it is not sufficiently shown that there were any such persons as those named in the certificates, or that any such persons purchased the lauds in question. This is exactly what the ancient documents prove, and is the very reason of the law mating them self-proving and evidence of their recitals and of the existence of other documents so recited therein. The rule of ancient documents as evidence are the children of necessity. The reason therefor is the improbability of obtaining living testimony to the proof of execution, that the witnesses to prove the facts are dead, or inaccessible, and that, the primary evidence being gone, we must resort to the next best, which opportunity enables us to lay hands upon, as a substitute.—Northrop v. Wright, 24 Wend. (N. Y.) 228. As Lord Ellenborough said, in Roe v. Rawlings, 7 East. 291, ancient documents are admissible in evidence in specified cases because it is hard to prove ancient things otherwise. The probability is that all the parties to these documents are dead or inaccessible as witnesses; and for this very reason the documents are self-proving and admissible in evidence. If their execution and recitals were sufficiently proven by other evidence, there ivould be no necessity or reason for the rules. This is a striking case for the application of the doctrine of ancient documents and prescription. The transactions here were dealings between citizens and officers of the same state, all of which happened nearly 40 years ago, and they are now assailed in the courts, for the first time, after death has sealed the lips of every party to the transaction and time has destroyed many of the documents.

In speaking of this rule and the presumptions arising from the lapse of time (more than 20 years), this court has said. “More than 30 years elapsed after the making of the conveyance before the commencement of this suit, during Avhich time the defendants and those under whom they claimed have been in open, notorious, and adverse possession, claiming title. The period of time had expired after which it is the policy of the law to quiet past transactions, and when courts will indulge for this purpose all reasonable presumptions. After such lapse of time, and such uninterrupted possession, it is permissible to invoke the rule of prescription in favor of a due execution of the power of sale, and of the regularity and validity of a conveyance, sufficient in law to pass the estate and title of the grantor.—Matthews v. McDade, 72 Ala. 377; Dog ex dem. Gosson v. Ladd, 77 Ala. 235. “Twenty years is a period of time beyond Avhich the courts are not disposed to permit past human transactions to be disturbed by judicial investigation.—McArthur v. Carrie’s Adm’r., 32 Ala. 75, 80 (70 Am. Dec. 529); Garrett v. Garrett, 69 Ala. 429; Baker v. Prewitt, 64 Ala. 551. In Sims v. Aughtery, 4 Strob. Eq. 103, the following language Avas used by the Supreme Court of S’outh Carolina: 'Twenty years continued possession Avill raise the presumption of a grant from the state of deeds, avüIs,, administrations, sales, partitions, decrees, and (the chancellor has said) of almost anything that may be necessary to the quieting of title, AAddch no one lias disturbed during all that period.’—McArthur v. Carrie’s Adm’r, supra, pages 91-83 of 32 Ala. (70 Am. Dec. 529). And this court has held that this presumption Avill not be defeated by infancy, coverture, or other personal, disability.—McCartney v. Bone, 40 Ala. 536; Garrett v. Garrett, supra. Nor will its operation be suspended by causes which have been legally adjudged to suspend the running of statutes of limitation.—Harrison v. Heflin, 54 Ala. 552.”—Matthews v. McDade, 72 Ala. 388, 389.

It Avas not necessary that them SAvamp and overflowed lands be sold only to actual “settlers.” Such is not the provision of the statute. The phrase, “at private entry,” used in the act of 1861, lias no such meaning. This court has decided in the case of Goolsbee v. Fordham, 49 Ala. 202, that the transaction called an entry of land in this state is simply a sale of the public lands to a citizen. The certificate of sale is merely the evidence of the sale until the patent is issued. There is nothing in the act of 1861 which required the sales to be only to certain individuals, nor that limited the quantity to be sold to any one individual. The Mobile & Ohio Railroad Company might have purchased all of the?e lands itself, if it and the agents and officers of the state saw fit to make the purchase and sale. Nor did the act prevent the railroad company from procuring other parties to purchase the lands for it, and to assign the certificates of purchase to it, which seems to have been done from an inspection of these records. While no witness testifies to this, it is shown bv all the circumstances that this was probably done. We see no valid or legal reason why the railroad company should have adopted this circuitous method of making the purchases ; but there was in it nothing illegal per se, nothing sufficient to avoid the sales after this great length of time. There may have been reason existing, which Ave cannot now know that justified the mode and manner of purchase to Avhich resort was had. It is not shoAA'n that the fact Avas not then known to the state or its officers. All that now appears tends to show that it Avas as open to them, as it is noAv to us, and was all recorded and ratified when the purported patents Avere issued to the railroad company. No objection Avas then assigned on this or any other account against the validity of the sales; nor any reason assigned why patents should not issue. But, on the other hand, there was an attempt to so issue, which failed only because the patents were not executed or signed in the manner provided by laAV. No doubt that all the parties concerned thought at the time that same had properly issued and in accordance with the law and the facts.

It is also urged against the sales that the act required an approval of the sales by the Governor before they were completed, and that the evidence does not show such approval. We think the record does show all the approval by the Governor that the law ever contemplated. If the patents had been properly executed, of course,, approval would be thereby implied; and we can see no difference, as to the fact of approval, that the attempt to execute the patents was abortive. Had the sales not been thus approved, certainly no attempt would have been made to execute patents, and the attempt to execute them implies approval, rather than a disapproval or a want of knowledge or of action on the part of the Governor. Of course, if the patents had been properly signed, attested, and fully executed, as the law directs, the legal title would have passed thereby ; there would then be. no occasion to infer an approval of the sales so as to create a perfect equity to the lands. If appellants’ contention is correct, no approval could be implied unless the patents were properly issued, in which case there would be no necessity or occasion for such implied approval. The sales in question being made before the act of 1879 (above referred to), they were confirmed by that act. It expressly confirmed all sales of swamp and overflowed lands wherein all purchase money had been paid made by any one purporting to act as an agent of the state. These sales were unquestionably of swamp and overflowed lands, and were made by persons purporting to act as agents of the state, to whom all the purchase price was paid, and by whom, we think this evidence reasonably shows, it Avas paid into the state treasury, being thereafter appropriated by the state, according to law, to the Alabama Insane Hospital. It is true, as argued, that there is no evidence to show that the particular money paid for these particular lands was paid into the state treasury, nor could we reasonably expect the evidence to show this at this late date, when the parties to the transaction are dead, or their testimony is not obtainable. It does, however, show that the money was paid to the proper agent of the state, and that it was so paid and received as the consideration for swamp and overflowed lands of the state — these particular lands —and this saíne agent soon thereafter paid a large amount of money into the state treasury as the proceeds from sales of swamp and overflowed lands, and that the Legislature of the state soon afterwards by enactment appropriated the identical amount shown to have been so paid in as the proceeds of sales of such lands. All that is needed to identify it beyond a reasonable doubt is a minute description of the lands so sold, of which it was the purchase price. The lands sold were described only as swamp and overflowed. Those in question were included in that general description. There is no evidence tending to show they were not so included. No lands were particularly described by this evidence, of which this money was the proceeds, nor was it expected that they would be so described. The certificates or receipts given the purchasers by the state’s agent were intended for this purpose, and they specifically describe these lands.

It is also insisted by appellants that this act of 1879 is unconstitutional and void, and does not effect a ratification of these sales, for the reason that the title of the act was not sufficiently broad to authorize, warrant, or embrace that part of the body of the act which ratified and confirmed these sales. To this argument we cannot yield our assent. Tbe authorities cited and relied upon by counsel are not in' point. The title of the act is as follows: “To further regulate, the securing, preservation, and sales of the swamp and overflowed lands of the state.” It is certainly no strained or unreasonable construction to hold that to confirm or ratify a thing is to regulate it. And to confirm or ratify a sale of lands is certainly securing and preserving the sale, as well as the lands to the purchaser. There is no reason why the act was not intended for the benefit and protection of the purchasers of the lands as well as for that of the state. It acts in prsesenti 'as well as in futuro. It relinquished all claim or title the state then had, as to lands for which the purchase price had been paid. The act is distinguishable from the act construed in Lindsay's Case, 120 Ala. 156, 24 South. 171, 42 L. R. A. 783. There the title of the act was, “To regulate the business of building and loan associations in this state,” which title further attempted to enumerate the respects in which the business should be regulated. The enumeration covers nearly a page of the printed acts, but contains no intimation or reference to the “premiums,” “fines,” or “stocks” theretofore taken by building and loan associations as being interest or loans on usurious contracts. The body of the act then proceeded, to provide, contrary to the express decisions of this court as to subjects of “premiums,” “fines,” and “stocks” theretofore or thereafter taken by such companies, that they could not be considered as interest for loans, but should be taken to represent premiums, and should be collected as debts, according to the stipulations of the agreement. The effect of the act, of course, was to overrule the decisions of this court upon those questions, and without letting the Legislature or the people know about it. The provisions were stricken clown in that case because expository legislation, attempting to compel the court to construe contracts according to legislative judgment, after these provisions were thus stricken down (for the reason stated), the court did decide that they were void because of the respective feature which was not indicated in the title. We have no criticism to make of what is said in that opinion, about retrospective logrolling and hodge-podge legislation; but it, like all other decisions, should be confined to the cases in hand, or those put in the decisions.

What was said in that case was apt to the case under consideration, but it is not so to the act construed in this case. The facts in the two cases axe different. There, there was an attempt to give the executed contracts between individuals a construction by the Legislature which the courts had refused to give them. Here it is shown by the record (and, if not so shown, the court judicially knows) that the sales of these swamp and overflowed lands had been for years and years the subject of the constant care of the Legislature. Nearly every year for 10 or 15 the Legislature passed some act authorizing and regulating the sales of these lands. It had provided for the appointment of special and general agents to sell, to collect the money therefor, to make deeds, or to have patents issued to the purchasers, and to recover back the lands in cases in which the purchaser did not pay for them. Then, in 1879, the Legislature passed this act in question, the title of which was, “To further regulate the securing, preservation, and sale of the swamp and overflowed lands of the state.” Could anything be more germane or cognate to that title than to provide for collecting the purchase price, for conveying titles to the purchasers upon payment of the price, and, -where the price was not so paid, to provide for the recovery of the land? This is exactly what the act did. It authorized the Governor to collect the purchase price where it had not been paid, or to bring suit therefor or suit for the recovery of the land; and provided that, in cases where the purchasers paid all of the purchase price, the titles to the property should vest in the buyers by virtue of the act, without any patent or other conveyance — all of which was cognate and germane to the title. If this were not true, the act was without operation and effect either for the weal or woe of the state or its citizens. We cannot agree to the argument that the title had reference to future sales only. Why to future sales, any more than to past sales or to sales being negotiated, if they were the subject of, and needed, further regulation? The title of the act does not say future sales, and there is nothing to so limit or restrict the word “sales.” The body of the act deals almost, if not entirely, with pending, and past sales; there'being very little, if any, reference to future sales. The title of the act being, among other things, “to further regulate sales,” this very language shows that it was intended to apply to pending or past sales; otherwise it would have been to authorize sales. As was said by Chief Justice Stone (Ex parte Byrd, 84 Ala. 20, 4 South. 398 [5 Am. St. Rep. 328]), in construing a prohibition law, “the very essence of regulation is the existence of something to he regulated”; and when the expression is “to further regulate,” does it not imply, not only the existence of the thing to be regulated, but also that it is already partially regulated?

For these and other reasons that might be assigned we feel no hesitancy in holding that this act was not void • or inoperative for this purpose, because its title fails to embrace the subject of confirming sales of swamp and overflowed lands. A liberal construction and all presumptions in favor of the validity of an act should always be indulged; and to warrant striking it down its unconstitutionality should appear beyond a reasonable doubt. A very general title is held to he sufficient to cover all things in the body of the act germane and cognate to such title; and the title and the act in such cases should he construed together.—State v. Crook, 126 Ala. 600, 28 South. 745; Sheppard v. Dowling, 127 Ala. 1, 28 South. 791, 85 Am. St. Rep. 68; A. G. S. R. R. Co. v. Reed, 124 Ala. 253, 27 South. 19, 82 Am. St. Rep. 166; Birdsong’s Case, 126 Ala. 632, 28 South. 522. So construed, we have no doubt of the constitutionality of the statute in question upon the point adverted to.

It should also be observed that this act of 1879 (p. 198) confirmed all sales of such lands by any one purporting to act as an agent of the state, where all the purchase money had been paid, except those in which the agent had some interest. The act could scarcely have.been broader or more sweeping in its terms, to the end of including the sales in question. The Legislature was certainly the one body or agency of the state which had the authority to bind it as to the sales and grants of these lands; and this agency of the state, with full knowledge of all the facts as to these sales and transactions, had the sales of these lands under consideration on several occasions; but it never repudiated or rescinded them, or any other like them, and on every occasion apparently it disclaimed any intention to disaffirm, ultimately passing the act to ratify all sales in the condition of these lands. The conclusion is irresistable that these particular sales were so .confirmed by the Legislature. Even the act (now sections 879-882 of the Code) which granted the remainder of. these swamp and overflowed lands to the hospital's under which these respondents claim title, expressly provided that it was not intended to interfere with or disturb the title and possession of the purchasers or present owners of lands sold prior to February 12, 1879; such prior sales being confirmed by an act of the Legislature of that date. The sales under which complainants claim title having been made prior to said last-mentioned date, and within the protection of the statute of February 12, 1879, it clearly appears that the lands in question and the complainants’ rights or titles thereto were not within or affected by this subsequent grant to the hospital, and that the deed of the trustee to respondents, attempting to convey these lands, is a cloud upon complainants’ title, and should be removed. This act being the only ground of respondents’ claim or title, it clearly appears that they have none, as was decreed by the chancellor.

It is therefore unnecessary to pass upon any other questions argued or assigned as error.

The decree of the chancellor is in all things affirmed.

Affirmed.

Dowdell, C. J., and Anderson, McClellan, Sayre, and Evans, 33., concur.

Case Details

Case Name: Jordan v. McClure Lumber Co.

Court Name: Supreme Court of Alabama

Date Published: Jul 6, 1910

Citation: 54 So. 415

Court Abbreviation: Ala.