Milton v. Haden , 32 Ala. 30 ( 1858 )

STONE, J.

Under the “ act to reduce into one the several acts concerning roads, bridges, ferries and highways,” passed December 21, 1820, as found in Toulmin’s Digest, 391, power was given to the county courts “ to establish ferries, and order them under such regulations as is hereinafter directed.” Section 20, p. 398, declares, “ that if any person or persons shall establish a public ferry, * * * contrary to'the provisions of this act, he or they shall forfeit and pay five hundred dollars, * * * to be recovered by indictment or presentment by a grand jury,” &c. On the 12th January, 1827, another act was passed, having the same title as that from which we have just quoted, and which retained verbatim, the clauses above copied. — See Aikin’s Digest, (2d edition,) p. 358, p. 363, § 26, p. 364, § 30. On the 2d February, 1839, the “act to extend the powers of the courts of roads and revenue in the several counties of this State,” was passed. By that act, power to grant licenses for public ferries was conferred on the courts of roads and revenue ; and it further declared, that “ if any person shall presume to establish a public ferry, * * and receive toll for the use of the same, without having obtained a license as prescribed by this act, * * * such person is hereby rendered liable to indictment, and, on being found guilty, shall be fined any sum the jury trying the offense may assess.” Clay’s Digest, 513, §§ 26, 27. By the Code (§ 1200) it is declared, that “if any person demands or receives toll for crossing any ferry, * * without a license therefor from the proper authority, * * * * he is guilty of a misdemeanor, and, on conviction, must be fined not less than twenty dollars.” These extracts from our statutes show, that from the year 1820, to the present time, the right to keep a public ferry for toll has been a franchise, which could not be exercised without a license or legislative grant; and that the unauthorized exercise of such right has all the time been prohibited under a penalty.

[2.] There -is no direct or express proof in this record, that the ferry at Selma ever was established in either of the modes above pointed out, until after this suit was brought. The note which is the foundation of this action was executed for the lease of the ferry privilege for one year, and upon no other consideration. Upon this feature of the case, we think the principle applies in its full force, that a contract founded on an act which the law prohibits under a penalty, is void. — Stanley v. Nelson, 28 Ala. 514, and other authorities on the brief of appellant’s counsel.

[3.] It is contended for the appellee, that, as Milton went into the possession of the ferry under the lease from Mrs. Tarver, (now Mrs. Haden,) and has never been disturbed in his possession, he should not be heard to question her title. We admit the general rule, that a tenant is not permitted to dispute the title of his landlord. The principle, however, does not apply to this case. We have shown above, that a public ferry is a franchise, and that from the year 1820 to the present time, its exercise without license or legislative grant has all the time been prohibited under a penalty. To allow the principle to govern a case like the present, would be to sacrifice a sound legislative policy to the presumed allegiance which a tenant owes his landlord.

In the case of Satterlee v. Matthewson, 13 Sergeant & Rawle, 133, this question arose as follows: Elizabeth Matthewson claimed title to land under what is there called a Connecticut title. The laws of Pennsylvania, in whose territory the lands were, declared those Connecticut titles invalid. Satterlee went into possession as tenant of Mrs. Matthewson, and subsequently acquired a title to the premises, which had been derived from Pennsylvania. Mrs. Matthewson brought ejectment against Satterlee for the land; and the question was, whether the latter could deny the title of the former. It was held, that he could. The court, among other things, remarked, that “ a settler under Connecticut could not pretend to an implied contract with the commonwealth, because he set up a title in direct opposition to the commonwealth.” * * * “ That landlords, claiming under Connecticut, had no right to expect from the courts of Pennsylvania the extension of a privilege, by virtue of which their tenants, who had pui’chased under a Pennsylvania title, should be estopped from defending themselves, by that title.”

In the later case of Miller v. McBair, 14 Serg. & Rawle, 382, Gibson, J., in delivering the opinion of the court, said, “Atenant may impeach his landlord’s title, whenever he can show that he was induced to accept of the lease by misrepresentation and fraud.”

In the present case, Mrs. Tarver, by leasing the ferry to Mr. Milton, impliedly, if not expressly, represented that she was the owner of the franchise; and it is impossible to resist the conclusion, that Milton would not have accepted the lease, if ho had known the title to be invalid. See Lanier v. Hill, 25 Ala. 554. We hold, that one who usurps the right to keep a public ferry, in violation of our statutes, cannot claim the allegiance from his lessee which is due from a tenant to his landlord. There is, in this ease, another clear ground on which to place our decision. One who usurps a franchise, and makes contracts based upon it, cannot enforce such contracts in the courts of the country. — See City Council of Montgomery v. Central Plank-road Co., at the last term, and authorities cited.

[4.] Another point made in the argument we feel it our duty to notice. Mrs. Iíáden, those under whom she claims title, and her lessee, had been in the uninterrupted possession of this ferry for near thirty years, when the note sued on in this case was executed. It is claimed for the appellees that, under these circumstances, it is our duty to presume that this franchise had been regularly granted. The appellants invoke the maxim, nullum tempus occurrit revpublicae. The authorities on this question are not entirely in harmony. In 2 Bla. Com. 37, it is said, that franchises, “being derived from the crown, must arise from the king’s grant; or, in some cases, may be held by prescription.” At page 266, note 10, 2 Wendell’s Blackstone, the subject of prescription is again treated, and several authorities are cited. It is there said, that “ evidence of twenty years user as of right, against the owner of the fee and those deriving under him, was held sufficient, if unexplained, to authorize a jury to presume such a grant, even against the crown ; and positive proof of the non-existence of such right, at any time before the twenty years, did not, of necessity, form any objection to such presumption.” The citations sustain the annotator. 1 Moody & Mal. 400; 2 Bos. & Pul. 206; 11 East, 384. In Trotter v. Harris, 2 Younge & Jervis, 285, the simple question was the right to a ferry privilege. It was admitted, that it was a franchise which must be by royal grant, or license from the crown. The court held, that “ from a user of thirty-five years, the jury might presume that a ferry had a legal origin.” — See, also, Gibson v. Clark, 1 Jac. & W. 159, 162; Stark v. McGowen, 1 Nott & McC. 387, 395; Carroll v. Norwood, 5 Har. & Johns. 155, 161; Barclay v. Howell’s Lessee, 6 Peters, 498, 512, 513; Harvie v. Cammack, 6 Dana, 242, 244; Duncan v. Beard, 2 N. & McC. 400; Vandick v. Van Buren, 1 Caines’ Rep. 34; McArthur v. Carrie, in manuscript, and authorities cited. In this case, where the question of the right to the franchise is only collaterally presented, we hold, that from the uninterrupted use and occupation of the public ferry for twenty years, the presumption may be drawn that it had a legal origin.

Under the charge which was given in this case, it becomes necessary to decide whether this presumption is one which must be at all times left to the discretion of the jury, or whether it can ever become an absolute or prima-facía presumption. It is not necessary in this case to determine, whether the presumption is absolute or prima-facie. If it in fact be either, the legal effect, under the facts disclosed-by this record, is the same. The single fact of uninterrupted use and enjoyment for near thirty years is proved on one side, and there is no proof which, in the least, contradicts or weakens this testimony. Proof, if such exist, that there was in fact no legislative grant or license, will not impair the presumption. The proof which can be effectual to overturn the presumption, must be addressed to the character of the use, enjoyment, or occupation; must tend to show that such use and enjoyment are not inconsistent with the right in another, or in the government. "Want of original authority to exercise the franchise cannot in the least tend to establish this proposition. We have, then, the familiar principle of a prima-facie presumption, without any countervailing proof. In such case, the presumption becomes conclusive.

In McArthur v. Carrie, in manuscript, we considered the question of twenty years uninterrupted adverse use and possession of personal property under claim of title. We there held, that such possession vested in the holder a prima-facie title, and that such prima-facie title could not be overturned by proof that, in its inception, it was bad. That was a case not covered by any of our statutes of limitation, and rested alone on the presumption drawn from lapse of time. We think the same principle governs this case. There being, then, no evidence which could tend to overturn the prima-facie case made by the plaintiffs, there was, on this feature of the case, nothing but the credibility of the testimony to be passed on by the jury. The charge of the circuit court presented that question in a form free from objection.

[5.] The only remaining question is that of the variance between the complaint and the note. I have felt inclined to doubt whether this question can be here considered as having been raised in the court below. On further reflection, we are unanimous in the opinion, that the charge makes it necessary that we should pass upon it.

[6.] The doctrine is certainly clearly settled, that in pleading • it is always sufficient to describe a contract according to its legal effect; and that a promissory note, made payable to one who is at the time a married woman, is, in legal effect, payable either to the husband, or to husband and wife, as they may elect to bring the suit in his name, or in their joint names. — See 1 Chitty’s Pl. 30; 1 Greenl. Ev. § 69; Philliskirk v. Pluckwell, 2 M. & Sel. 393; Ankerstein v. Clark, 4 Term Rep. 616; and other authorities on the brief of appellee. This suit, however, is not brought in the names of Mr. and Mrs. Haden, as husband and wife, but as individuals. To justify a recovery by them, it is not only necessary to read the note in evidence, but they are required to go further, and prove an independent fact, to-wit, that they sustain to each other, and did at the time the note was executed, the relation of husband and wife. There is no averment to let in this proof. This suit, is brought in the individual right of the plaintiffs, and the complaint describes a note which is payable to the two by name. Under the complaint, without amendment, the note was not proper evidence; and hence we hold, that the proof did not justify a recovery by plaintiffs, described as they were in the margin. — Huguenin v. Letondal, 26 Ala. 552; English v. George, 30 Ala. 582; Agee v. Williams, 30 Ala. 636; Lewis v. Harris, 31 Ala. 689.

If the suit had been in the names of the two plaintiffs, describing them as husband and wife at the time the note was executed, or describing them as administrator and administratrix, and suing in that right; and if the complaint, on the last hypothesis, had contained on averment that the note sued on was assets in their hands as administrators of their intestate, there'could then be no objection urged against the form of the suit.

For the single error above pointed out, the judgment is reversed, and the cause remanded.