Saffold v. Powell , 59 Ala. 377 ( 1877 )

MANNING, J.—

We have carefully considered the able -argument submitted for appellant, but can not yield our assent to its conclusions.

The claims of the parties are made under the act- of Alabama of February, 1860. That provided for the selection from the public domain within this State, of the lands designated in the legislation of Congress, as “swamp lands,” which were not ascertained, and were to be examined, proved and reported as such, by the agents to be appointed under that act, to rhe satisfaction of the land office at Washington. To the extent of 400,434 acres, this, according to the testimony, was done. Patents for this land were promised, by the Commissioner of the General Land Office, and doubtless would have been sent, but for the political events immediately succeeding. The patents afterwards issued in 1869-70, for 392,719 acres were for a portion of those same lands, without any new selection and report thereof by any agent of the State. As to those lands, Powell and his associates seem to have performed all that the law and contract required them to do, because it was all that could be done by them. They could do no more than ¡Drove the right of the State to-the lands and demand the patents therefor, which they did do. To issue and deliver the patents, were duties of officers of the General Government, who were wholly beyond any control of the agents. We repeat that according to the evidence, Powell and his associates did all that it depended on them to do. True, that did not entitle them to the compensation stipulated for : because it was a condition of the contract that this should be paid only out of the proceeds of' the lands. They agreed to make that contingent not only on their own performance of the duties they undertook, but on the performance by Government officials of their duties also. On the part of the agents themselves there was no delinquency in respect to the 400,434 acres. WThen, therefore, subsequently after the convulsions of the time were partially allayed, the patents for those lands vTere issued by the Government of the United States, to the State of Alabama, although another person was delegated to apply for and obtain them, it would not have been equitable in the State to refuse to make an allowance out of the proceeds of their sale, to the agents by whose exertions and at whose, expense, the State had been enabled to obtain them. There is no mere sentiment in this view; the agents are equitably entitled to compensation.

It does not follow, though, that Saffold, also, ought not to-be paid for his services. They were those, chiefly, of an attorney. He was at first appointed as such. But there being no act of the legislature specially authorizing such an appointment and no provision of law for his compensation, it seems that to obviate this difficulty, it wras determined to issue to him a commission as agent under the act of February, 1860. And wm suppose, that to comply with the provision that there should be at least three agents to'perform the duties under that act, other persons were appointed with him,—who never performed any service, while Saffold continued to act as attorney of the State in urging at Washington the issuance of the patents. Not only were the services contemplated by the act of February, 1860, for which twenty per cent, commissions were to be allowed, not performed, but they could not then be performed. The time within which the State might select the swamp lands had long before-elapsed, and the act of February, 1860, had thus become inoperative.

We do not doubt that Saffold diligently rendered valuable and able professional services, by request of the Governor ; that the State has been profited by them and that he well deserves a larger sum as compensation than the amount allowed him by this decree. But it does not rest with this department of the Government.

Powell and his associates claim no advantage over each other in the distribution of the fund: it was not, therefore, error to divide what was allowed to them, equally among them. We think they were entitled to all that is adjudged to them by the decree. And they do not assign error to so much of the decree as allows Saffold an equal share with them. We therefore find no reason- for setting aside the decree of the chancellor, and it must be affirmed.

Stone, J., not sitting.