This is an action of ejectment for the possession of forty acres of land, the northwest quarter of the southeast quarter of section 10, township 26, range 16, situate in Mississippi county in this State. The action was originally commenced in said county and a change of venue awarded to the city of St. Louis. This is the second appeal in the cause to this court. The defendant recovered judgment on the first trial in the circuit court of St Louis and that judgment was reversed and the cause remanded by Division number 1 of this court. The opinion then rendered will be found in
On the ninth of February, 1853, Congress passed an act (10 U. S. Stats, at Large, p. 155), granting to the State of Arkansas and Missouri a right of way though the public lands for a railroad,.from a point on the Mississippi river, opposite the mouth of the Ohio, to Pulton on the Texas boundary, by the way of Little Rock; also granting to said States, respectively, every alternate section of land, designated by even numbers, for six sections in width, on each side of the road “for the purpose of aiding in making the railroad and branches as aforesaid,” and providing that the legislature might dispose of the lands “for the purposes aforesaid, and no other.”
Section 5 provides: “That the lands hereby granted to said States shall be disposed of by said States only in the manner following; that is to say, that a quantity of land not exceeding one hundred and twenty
On the twentieth of February, 1855, the legislature of this State, passed an act (Acts 1854, p. 314), granting to the Cairo & Fulton Railroad Company, a corporation organized under the laws of this State, the lands granted to this State by the act of Congress aforementioned, “for the uses and purposes, and subject to the condition, reversion, and provisions set forth and contained in said act of Congress and this act.” The act contains the following section:
“Section 5. For the purpose of raising funds from time to time, for the construction of the said railroad, the said company may sell the said lands, in the manner provided for by the said act of Congress, and may issue their bonds in such sums as they may deem proper, at rates of interest not exceeding seven per cent per annum, payable semiannually, and the principal of said bonds, payable at such time and place as they may designate; and may secure the payment of said bonds by mortgage of said lands, or any part thereof, to be executed by said company, and may make the said bonds convertible into land or stock of the company within such periods as they may prescribe ; Provided, further, that nothing in this act contained shall be construed to authorize said company to sell, dispose of, or apply the said lands, or the proceeds thereof, in any other manner, or to any other purpose,*366 than as required and limited by the said act of Congress.”
The act of Congress provided that if it should appear, when the road was located, that the United States had sold any of the lands granted to the State, the State might, by an agent appointed by the G-over-nor, select other lands in lieu thereof. There were some twelve thousand, eight hundred and eighty-seven acres of vacant even numbered sections of land which passed to the State by the act. of Congress, the parcel of land in suit being a part hereof and within the first twenty-mile section of the road which was constructed.
By the act of the eleventh of December, 1855, (local Acts 1855, p. 469), the legislature provided for issuing State aid' bonds to the Cairo & Fulton Railroad Company to the amount of $250,000 and provided that no part of the bonds should be delivered until the company signified its acceptance by filing a receipt for the bonds with the Secretary of State. Section 3 of this act is as follows:
“SeotioN 3. Each certificate of acceptance so executed and filed, as aforesaid, shall be recorded in the said office of the Secretary of State, and shall thereupon become and be, according to all intents and purposes, a mortgage of the road, and every part and section thereof and its appurtenances, to the people of this State, for securing the payment of the principal and interest of the sums of money for which such bonds shall, from time to time, be issued and accepted, as aforesaid.”
On the twenty-ninth day of June, 1857, the president of the road filed with the Secretary of State a certificate showing the acceptance by the railroad company of the provisions of the act of December 11,1855.
Bonds were issued under this act, and receipts filed
On the third day of March, 1857, the legislature passed another act (Laws of Missouri 1856,1857, p. 85), extending State aid to five or six railroad companies by a loan or guaranty of bonds, including therein an additional loan of $400,000 to the Cairo & Fulton Railroad Company. Section 17 of the act is as follows:
“Section 17. All bonds issued under the provisions of this act shall constitute a first lien or mortgage upon the road and property of the several companies so receiving them, in the same manner as provided by the act approved February 22, 1851, ‘to expedite the construction of the Pacific Railroad, and of the Hannibal & St. Joseph Railroad, and the act approved December 10,1855, of which this is amendatory.”
On the .nineteenth day of October, 1857, the president of the road filed his certificate, accepting on the part of the company the provisions of the act of March 3, 1857. Section 15 of this act provides that, in the event of a failure on the part of the company to pay any part of the prinepal or interest on the bonds of the State, issued under the act, the Governor should take such steps as might be deemed necessary and proper to foreclose the mortgage of the State and enforce its lien on the property of the company. The bonds referred to in the act of March 3, 1857, were issued and accepted by the railroad company.
The Cairo & Fulton Railroad Company having made default in the payment of the State aid bonds, the legislature passed two acts — one on the nineteenth of February, 1866, and the other on the nineteenth of March, 1866 — directing the Governor to foreclose the State’s lien, and providing for a board of commissioners to bid in the property and giving the commissioners power to sell the property so purchased, reserving,
In pursuance of these acts, and the powers contained therein, the Governor, by deed dated the twelfth of October, 1866, sold and conveyed to the.State “said Cairo & Fulton Railroad, and every part and section thereof, so far as the same is constructed, completed or projected, together with its appurtenances, rolling stock, and property of every description, and all rights and franchises thereto belonging.” Afterward, the State, by a like description, conveyed the property to Read, Mackay, Yogel and Simmons, by deed dated January 17, 1877, and they, by a like description, conveyed the property to Thomas Allen. Title to the property passed from Mr. Allen to the Cairo, Arkansas & Texas Railroad Company. That company and the St. Louis & Iron Mountain Railroad Company consolidated under the name of the St. Louis, Iron Mountain & Southern Railway Company, and the last named company conveyed the land in suit to defendant, Thomas Beckwith, by deed dated February 17, 1882.
The plaintiff claims title as follows: The Cairo & Fulton Railroad Company, by a trust deed, acknowledged on the thirtieth of April, 1858, conveyed to John
I. We are urged to reconsider and overrule the opinion announced on the former appeal in this case. In view of the gravity of the question involved and the consequences that must follow our adherence to the ruling therein made, we have thought it proper to examine again the reasoning upon which that decision is based. In so doing we inaugurate no new practice in this court. In the recent case of Bird v. Sellers,
In the still more recent case of Rutledge v. Railroad,
Inasmuch then as this case involves a question of title that may and probably will affect the ownership of at least ten thousand acres of land similarly situated, and the litigation has been kept alive during all the time that has elapsed since the former opinion, it can not with much confidence be asserted that it has been accepted, or acquiesced in, so as to have become a rule of property, certainly not one of very .long standing. Few titles, under the circumstances, can reasonably be presumed to have been acquired on the strength of the opinion rendered on the former appeal.
Of the three important points decided in the former appeal only one is challenged at this time. Indeed, as to the first two paragraphs of that opinion, we deem these propositions incontrovertible, viz., that all persons claiming title to lands under and through the deed of trust from the Cairo & Fulton Railroad Company to
The conveyance to said trustees on its face recited that said lands were conveyed to them subject to a prior, first, and only lien in favor of the State of Missouri to secure the bonds issued to said railroad by the State, under and by virtue of said acts of 1855 and 1857. Notice of said lien was thus imparted by the recitals upon the face of the instrument through which they deduce their titles. Equally well- settled is the other conclusion reached in the second paragraph of the opinion that by the words “the road and every part and section thereof and its appurtenances,” in the act of December 11, 1855, the “Congress lands” were not included, and the State by that act did not acquire a lien upon said lands. They were not in a legal sense appurtenant to the railroad, but were independent property not necessary or even convenient to its operation.
II. Concurring up to this point- with the views expressed on the former appeal, we are confronted with the claim that in the third paragraph of that opinion this court misinterpreted the language of the act of March, 1857, which provided that “all bonds issued under the provisions of this act shall constitute a first lien and mortgage on the road and property of the several companies, etc.” Act 1857, sec. 17. This court held that these general words, “the road and property of the companies” did not, and were not intended to embrace lands patented by the United States to the State of Missouri by the act of Congress of 1853, “for the purpose of aiding in construction of
We approach the examination of the reasoning which forms the basis of the construction placed upon the foregoing language in no egotistical or critical spirit. It is the purpose of the writer so far as in him lies to calmly consider the contention of counsel for appellant that the opinion of this court on the former appeal is irreconcilable with former adjudications of this court and the Supreme Court of the United States construing these identical words. If we arrive at a different conclusion it will be because we believe the language and spirit of the statute are not susceptible of the meaning ascribed to it by the learned judge who wrote that opinion, and with no desire to detract in the least from the weight of his decisions which have earned for him a most enviable position as a jurist.
The statute of 1857 secures to the State a first lien and mortgage “on the road (railroad) and property” of the Gairo & Fulton Railroad Company.
Property is nomen generalissimum and extends to every species of valuable right and interest, including real and personal property, easements, franchises, and other .incorporeal hereditaments. 19 Am. and Eng. Ency. of Law, pp. 284 and 285.
This is conceded by the opinion. Says the learned judge, “Property, when unrestricted, includes every class of property which a man can own, but it is gen-ei’ally used in a less comprehensive sense.” Unquestionably the term may be restricted and often is by the context. Unless then the words “on the road and its property” are so associated with other words which taken as a whole indicate that it was the intention of the legislature not to take a lien upon the railroad and its other property it must be conceded they are com
Again, on the former appeal the defendant urged that the Supreme Court of the United States in Wilson v. Boyce,
Deferring for the present any discussion as to the soundness of Whitehead v. Vineyard and Wilson v. Boyce, upon the fact of each, we must pause to consider whether the case at bar is “a like case” to those cases. We agree with the learned judge that the limitation of the doctrine of stare decisis to “like cases,” refers only to cases which are alike in principle, or in substance.
In every conveyance, whether by way of absolute grant, or byway of security for the payment of money, or performance of some collateral agreement, the estate or thing conveyed is of prime importance, and in the development of this branch of jurisprudence certain formulas of expression have grown to be recognized as essential and as defining in a few words the effect of the conveyances in which they are used. When such words have received judicial sanction they have been afterward adopted by the legal profession and conveyances and in no department of legal science has more conservatism been displayed than in adhering to such technical expressions. Thus the word “heirs” became in time absolutely necessary to the creation or transfer of an estate in fee by deed. And when in this and other states it was deemed unnecessary, the remedy was applied by the legislature and not by the courts. Likewise the words necessary to pass an estate tail having been judicially ascertained were scrupulously guarded in subsequent cases by the courts. Chamberlain, in his essay on stare decisis, recalls that in Coulson v. Coulson, 2 Strange, 1125 (13 Geo. 2), where the question was, what words pass an estate tail, it was held by the King’s Bench that upon the facts of the case this was an estate tail in the grandson. In the subsequent case of Hodgson v. Ambrose,
What if any similarity exists between the facts in this case and those in Whitehead v. Vineyard, supra? The cases are each in ejectment. In Whitehead’s case his title depended entirely upon the superiority of the State’s lien under the act of 1857. It was not disputed that he had the title provided the land was included in the State’s lien on the Iron Mountain Road by the use of the words “the road and property of the companies,” and was subsequently sold to Thomas Allen under the “sell out” act of 1866. In this case, the defendant’s title stands undisputed if the same words, in the same act, secured to the State a lien on the property of the Cairo & Fulton Railroad. In each case the State had issued its bonds to aid said railroad and had reserved this lien. A stronger parallel case could hardly be conceived. Standing thus, can it be doubted that the first case furnished .a binding precedent in the same jurisdiction if the doctrine of stare decisis is not to be wholly ignored? In the former opinion of this court in this case, Whitehead v. Vineyard was not overruled, but it was sought to distinguish it from this case on the ground that it did not appear “hoiv” the Iron Mountain obtained its outside lands, whereas in this case it did appear that these lands were granted to the State of Missouri by an act of Congress to aid in the construction of a railroad. But can it change the
Recurring to the report of Wilson v. Boyce,
We are entirely unable to see how it can be said that the Supreme Court of the United States did not consider the act of Congress granting the lands to Missouri and did not consider the act of the legislature of Missouri which granted the lands to the railroad company. We are unable to conceive how that great court could have more clearly or fairly met the issue as to the respective titles of Wilson and Boyce than it did in that case. So that the premise assumed that this case on the former appeal was not “a like case” to Wilson v. Boyce because the Supreme Court of the
Having reached this conclusion it necessarily follows that in our opinion the decision of this court on the former appeal was wrong in not following those decisions rendered, one twenty-one years, and another eighteen years, before the decision of this court on the former appeal.
No court is more firmly committed to the doctrine of stare decisis than this court. In Reed v. Ownby,
“The counsel for the plaintiffs admits these authorities are directly against him, but asks this court to review the question and determine the law otherwise. This we are not at liberty to do. The law has been settled for many years; it has become a rule of property, and titles have been vested on the strength of it. The stability of judicial decisions is of the utmost consequence, as on them reposes the security of property;*382 and they are not to be tampered with to suit the yiews of different persons.”
In Dunklin County v. Chouteau,
Similar expressions of the rule can be found throughout the judicial history of this State and in no case in our opinion will the facts present a stronger reason for the application of this salutary doctrine than this record presents for maintaining the law as announced in Whitehead v. Vineyard, Wilson v. Boyce, and Chouteau v. Allen upon the construction of the act of March 3, 1857.
If no other reason could be adduced, upon this ground alone we think the decision in this case on the former appeal should be overruled and the judgment of the circuit court rendered in obedience thereto reversed.
III. But we are by no means disposed to hold as an original proposition that this court erred in its decision in Whitehead v. Vineyard,
To clearly apprehend the reasoning of this court on the former appeal the lines upon which it proceeds must be kept in view. Says the learned judge who wrote the decision: “We shall take it as settled law that the words of the aid act of 1857 before quoted, include the land here in suit unless it is excluded by force of prior legislation.” He then states that the
Let us now examine these premises. Did the act of Congress of 1853 fasten upon these lands a trust so that they could not be disposed of by the State for any other purpose? We think most clearly not. In the case of Railroad v. McGee,
In Dunklin County v. Dunklin County Court,
In Pool v. Brown,
The language of the act of Congress of February 9, 1853 (10 U. S. Stats. at Large, 155), is “that there be and is hereby granted to the States of Arkansas and Missouri every alternate section,” etc. In U. S. v. Railroad,
In the light of these authorities we think the learned judge was in error when he held that the construction of twenty miles of road and a certificate thereof by’ the
So that the title of the State and the Cairo & Fulton Railroad claiming through the State was not impressed with a trust upon the land and did not depend upon the performance of a condition precedent, but was a present grant which passed the title to the State, and was not and has never been forfeited for breach of the condition subsequent at the suit of the United States government, the only party who could complain of any supposed violation of the trust confided in the State. It remains to examine the contention that the holding that the act of 1857 created a first lien upon “the Congress lands” is contrary to sound principles of construction because the effect of such construction
As to this claim it follows from what has already been said that by the grant to the State the title to the lands passed to the State unimpressed with a trust or lien in favor of the United States. By the act of 1855 the State, by a legislative grant, also inpraesenti, passed the same lands to the railroad company, and in the same year loaned the road State aid bonds to the amount of $250,000, and reserved a statutory mortgage on the roadanditsappurtenances. Itis, we think, obvious that according to settled legal principles the company could sell and mortgage these lands for the purpose of furthering the object of its incorporation, but lest there might be some question the power to sell or mortgage was expressly conferred upon it. But while the company had this express right to sell or mortgage these lands and use the proceeds in building the road, it is claimed that to permit it to borrow $400,000 from the State and mortgage all of its property, including these lands, would abrogate the privileges conferred by the act of 1855. Let us for a moment look at this from the company’s standpoint. It was empowered to sell or mortgage these lands to individuals, but this may have been disappointing. We do not know what retarded these sales, but it may have been the stagnation which preceded and resulted in panic of 1857. At any rate two years had elapsed and it had a large body of unimproved lands on its hands, and it is found seeking a loan of $400,000 of the State. The road construed its grant to permit a mortgage to get funds in an amount to be of practical assistance. In the language of the Supreme Court of the United States when this question was before it in Wilson v. Boyce, supra: “It was quite within the competency of the railroad company to mortgage its lands not used for its track or
Two alternatives were presented to the railroad. To continue to sell its lands by piecemeal to actual settlers, or mortgage those lands and raise the sum of $400,000 which would enable it to make some considerable, progress toward its completion. There is nothing irreconcilable in the two statutes. ' Of course, if it chose to borrow from the State, the effect would be that the sale to individuals would be practically postponed, but it would be a voluntary choice and in no sense an abrogation of the statute of 1855. The act of 1857 was an amendment of the act of 1855 by and with the consent of the company whereby the security of the State was extended over all the property and lands of the road, whereas by the act of 1855 it covered only the road and its appurtenances. It was an aid act of which the company promptly availed itself. From the State’s point of view, the motive appears simple.. “Time has passed without a completion of the road. A large additional loan was now made and a desire to receive additional security gives a natural and logical explanation of the additional words inserted in the mortgage.” Such has been the construction of the act of 1857 by this court and the Supreme Court of the United States. But whatever the motive, it was entirely competent for the legislature to fix the terms upon which it would grant the State’s aid. This it did by plain, unambiguous language, and when this is done it is not the province of the judiciary to speculate at this time as to what the state should have done. Says Judge Cooley: “The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the Constitution has vested the leg
We think that the plaintiff’s grandfather, as purchaser from the trustees, Moore, Wilson and Waterman, had notice of the State’s prior lien obtained by the act of March 3, -1857; that said lien covered the land in suit; that it passed by the sell out” acts of 1866, and that defendant having acquired his title thereto under said prior lien, 'should have recovered upon the the admitted facts, and that the opinion of this court on the former appeal was a misapplication of the Ret of 1857. The judgment is reversed and cause remanded with directions to enter judgment for defendant. Barclay, C. J., concurs in the judgment on the grounds stated in the first and second paragraphs of the opinion but deems it unnecessary to express his opinion on-the subject discussed in the third paragraph. Eobinsqn, J., concurs in toto. Macear-lane, J., concurs in the first and second paragraphs, but dissents as to the third. Brace, J., concurs in the first, and dissents as to the second and third paragraphs.