67 So. 249 | Ala. | 1914
It appears to us that the opinion and decision of this court in the case of Nelson v. Weekley, 177 Ala. 130, 59 South. 157, and that of the Supreme Court of the United States in Michigan Land Co. v. Rust, 168 U. S. 589, 18 Sup. Ct. 208, 42 L. Ed. 591, are decisive of this question, to the effect that the legal title to the land in question did not pass by the act of Congress, but only by the patent. This question, of course, must depend upon the construction to be placed upon the act of Congress in question. If title did pass by this act, then it could not be defeated by a subsequent act of Congress alone, nor by a survey, nor the issuance of a patent, even if it attempted to convey title. Likewise, if the act of Congress in question provides that the title shall vest, by virtue of the act, when a survey is made, and the survey vas so made, before the issuance of the patent, then the patent is merely a confirmation of the grant, survey, and location, by' the Land Department of the government, arid not the grant itself. What was said in the case of Price v. Dennis, 159 Ala. 629, 49 South. 250, is applicable here: “If Congress had granted the land, and had thereby provided that the title should pass on selection as provided for in the act, the date of the selection would be the date of the passage of the legal title, as well as the equitable title, out of the gow ernment. The legal title can pass out of the' United States as well by such a grant of Congress as by a patent ; and if a patent is issued thereafter it may be that it is merely evidentiary of the prior grant and selec
On the other hand, if the act of Congress, and the survey, merely authorized the grant to be made by a patent, then, of course, the title passed only when the patent issued. This last condition we find from this record to be the true situation. It appears that there was not even an attempt to grant any land by the act of Congress in question, but only to provide for a survey, or location or identification, of certain claims, and, when so located and identified, for a' grant by the issuance of a patent, which was accordingly done in this case.
Affirmed.