| Ala. | Apr 6, 1909
It was admitted that- Thomas E. Dennis and Robert M. Dennis were the only heirs at law of Pollard M. Dennis, that Pollard M. Dennis was dead,, and that his estate owed no debts. Plaintiffs (appellees here) offered a patent to the lands sued for, from the United States, of. date October 10, 1904, issued upon land warrant No. 56,305, which Avas originally issued to one Edward Gantt, and assigned by him to Pollard M. Dennis, the patentee. The plaintiffs thereupon rested.their case.
The defendants (appellants here) then offered in evidence a certified transcript from the General Land Office of the United States, purporting to be a copy of the register’s and receiver’s certificate of location No. 216, made at Greenville, Ala., upon warrant No. 56,305, for 160 acres of land, Act 1855; also exact copies from the Abstract of Warrant Location and Suspension Docket C. 4 — 207, in relation to said warrant. These abstracts show the issuance to Edward Gantt of military bounty land warrant No. 56,305, dated February 16, 1857; its receipt in the land office at Greenville, Ala., November-7, 1859, with the accompanying application for its location upon the lands in the suit; the certificate of the receiver and register of the Greenville land office that the location was correct; and its suspension,-'by the General Land Office, because of -improper or blank assignment
Defendants then offered in evidence a tax deed to S. y2 of S. W. section 10, township 22, range 14, made by the probate judge of (then) Baker county, of date April 10, 1872, under sale made of said lands for taxes, year 1869, to' A. B. Hill; a deed from Hill and wife to R. J. Hill, of date February 14, 1881; a deed from R. J. Hill to Mrs. D. A. Cain, of date January 15, 1884; a deed from Mrs. D. A. Cain and husband to G. W. Sorrell, of blank date; a deed from G. W. Sorrell and wife to J. R. Cain, of date May 16, 1893; a deed from J. R. Cain and wife to Reuben Price, of date August 13, 1897; and a deed from Reuben Price and wife to Houston Price, of date March 19, 1900 — and in connection with each of said deeds defendants offered evidence to show that the grantees therein went into possession under them, and remained in possession until the property was transmitted to their successsors in title, down to the date of the trial. These deeds and the evidence of possession were excluded by the court on plaintiffs’ motion; and the affirmative charge was given for plaintiffs.
The legal question involved in this appeal, and upon which the rights of the parties to this action solely depend, is : Was the possession of the defendants, and those under whom they claim, for 30 years or more, such an adverse holding, as against plaintiffs and those
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 government. The legal title can pass out of the Unite 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 selection. But this is not the case in the present action. It was intended by Congress that the patent should pass the legal title, and that it should not pass until the patent was issued.
It is true that after the issue of the wrant, and the location of the land thereunder, in accordance with the act of Congress providing for such cases, and the location is approved by the Land Department of the government as provided, the person so locating- thereby obtains such an equity as the state and federal courts will protect, and one which gives him an absolute right to the patent and the legal title, and that if a patent should be issued to another, in violation of his equity, it would be void for lack of authority to issue; and if the patent is subsequently issued to him, in accordance with his perfect equity thus acquired, by a legal fiction which the law creates for the protection, but not for the defeat, of his title, it relates back to the date of the completion of his perfect equity. It is also true that, when the full
Until the equity of the locator is complete, the United States can convey by patent, or grant by act of Congress, the legal title to a stranger; and until the alienation is thus completed the land remains subject to government control, and is not subject to state control, or to the control of the locator as against the government itself, though it might be as to other parties. — Prescott’s Case, 16 Wall. 603" court="SCOTUS" date_filed="1873-03-31" href="https://app.midpage.ai/document/railway-co-v-prescott-88711?utm_source=webapp" opinion_id="88711">16 Wall. 603, 21 L. Ed. 373; McShane’s Case, 22 Wall. 444" court="SCOTUS" date_filed="1875-01-18" href="https://app.midpage.ai/document/railway-co-v-mcshane-89083?utm_source=webapp" opinion_id="89083">22 Wall. 444, 22 L. Ed. 747; Tucker’s Case, 22 Wall. 527" court="SCOTUS" date_filed="1875-03-18" href="https://app.midpage.ai/document/tucker-v-ferguson-89089?utm_source=webapp" opinion_id="89089">22 Wall. 527, 22 L. Ed. 805; Colorado Co. v. Commissioners, 95 U. S. 295, 24 L. Ed. 495" court="SCOTUS" date_filed="1877-12-10" href="https://app.midpage.ai/document/colorado-company-v-commissioners-89592?utm_source=webapp" opinion_id="89592">24 L. Ed. 495. The doctrine of legal title relating back to the inception of the equity, contended for by appellants, is not availing to them under the facts of this case. This doctrine is a pure and legal diction, adopted by the courts solely to protect and preserve the legal title, subsequently acquired, and not to defeat it . It would be applied here, if this were necessary, to protect the title of the patentee, but not to defeat it. If the defendants claimed through the patentee — that is, were privies in title to him — then the doctrine might be indulged for •their protection; but they claim against, and not through, this title.
Another reason why defendants’ claim of adverse possession cannot be availing, in this case is that the record shows that the equitable title of the patentee was never perfected until a very short time before the issue of the patent. The records of the Land Office show that the location of this land in question, under that warrant, was suspended by the Commissioner of the General Land Office of the United States because of insufficiency
Our statute (Code 1896, § 1813), providing that certain certificates issued under acts of Congress, or by the register of the land office, etc., vest a legal title in the . holder, etc., cannot benefit the defendants. It was never intended to benefit a party claiming, as the defendants -are claiming here, against the holder of such certificate or the patentee; but, even if it were so intended, it could not so operate in this case, because it would have to defeat- the title of the United States, which it cannot do. -The statute was evidently intended to protect the title of the United States, or title acquired thereunder through such certificates. The Legislature of Alabama could not, if it would, pass title to land out of the United States. — Lowery v. Baker, 141 Ala. 600" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/lowery-v-baker-6520573?utm_source=webapp" opinion_id="6520573">141 Ala. 600, 37 South. 637; Knabe v. Burden, 88 Ala. 436" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/knabe-v-burden-6513725?utm_source=webapp" opinion_id="6513725">88 Ala. 436, 7 South. 92.
The defendants’ evidence was therefore properly excluded, and the general affirmative charge properly given for plaintiffs.
The judgment of the court below is affirmed.