Ware v. Swann , 79 Ala. 330 ( 1885 )

SOMEBVILLE, J.

The action is one in ejectment, in which the plaintiffs have elected to frame their pleadings and proceed according to the rules of the common law governing that form of action, as they were authorized to do by the statute.

There is no denial of the fact, that the plaintiffs’ title to the land in controversy will authorize a recovery by them, unless it was divested by the deed, purporting to be made in the name of the Alabama and Chattanooga Railroad Company, on October 13th, 1870, by J. C. Stanton, as general superintendent and attorney-in fact of that corporation, conveying to Mrs. Julia Fenton, from whom the defendant derives title; or, unless the defendant’s possession has matured into a good and superior title by operation of the statute of limitations applicable to an action of ejectment, which is ten years.

The first, point is directly settled against the appellant by the case of Standifer v. Swann & Billups, trustees, decided at the last term.—78 Ala. 88. It was there held, that a deed to these lands made by John O. Stanton, without written authority from the board of directors, or other governing body of the railroad company for which he purported to act as agent, conveyed no legal title to the grantee, or any estate of which a court of law would take cognizance. It was further said, that the lands could lawfully be sold only for cash or money in hand, or the promise of it. There is no essential difference between the facts of this case and that. The record fails to show that Stanton was possessed of any other than oral authority to make the deed, and this was without any legal efficacy. The consideration paid by the first grantee was not money, but land situated in another State. The grantee in the deed acquired no title, and, having none, she could convey no more than she had to the defendant.

The only remaining reliance of the appellant is the statute of limitations of ten years.

When did the statute commence to run? This question was fully discussed in Swann & Billups v. Lindsey (70 Ala. 507), and Swann Billups v. Larmore (70 Ala. 555); and we need add but little to what is said in those cases. In the former of those cases, this court entered at length upon a discussion of the proper construction of the several acts of Congress making a grant of these lands in aid of the North-East and South-West Alabama Railroad and of the Wills Talley Railroad, and the subsequent act of April 10, 1866, reviving and renewing the grant for three years in favor of these roads, the corporate existence of each of which was merged by consolidation into a new corporation known as the Alabama & Chattanooga Railroad Company, under the act of October 6, 1868, authorizing such consolidation ; and the. conclusion wTas reached, that the statute of limitations was in abeyance until the completion of the railroads for the benefit of which the grant was made. The reason assigned was, that the title to lands occupying the status which these do, remained in the State, as trustee, until this event occurred, and no one else had any right to bring suit for them; and inasmuch as time never runs against the State, its title was entirely unaffected by lapse of time. The railroad company, it was added, could maintain no action, legal or equitable, until it acquired the title, or a right to the possession ; and this contingency could never happen until the road was completed.—Swann & Billups v. Lindsey, 70 Ala. 507, supra.

When the deed was made by Stanton, in October, 1870, the Wills Yalley Railroad Company, as we have said, had no separate corporate existence, but had become merged into the Alabama & Chattanooga Railroad Company. It never after-wards had the power to sue, its rights in this particular being transferred to its successor. — Acts Ala. 1868, pp. 207-209. The new company alone, after this, had the right to sue for these lands, and not then until the completion of the entire road. This was accomplished on May 17, 1871; and the statute of limitations became capable of operation from that day, by the existence or occurrence of the requisite conditions to set it in motion.

It is contended that the action is nevertheless barred, because it must be considered as having been commenced on June 9, 1871, when the declaration and notice in ejectment were actually served on the-tenant in possession, and not on the 10th day of May, 1871, when these papers were filed in court and went into the hands of the sheriff for service. If the premises be admitted, the conclusion necessarily follows, because more than ten years would have elapsed before the day of such service.

The rule of the common law undoubtedly was, that the service of the declaration and notice on the tenant in possession of the premises sued for, was considered as the commencement of the action. The practice was for the lessor of the fictitious plaintiff, either himself or by his agent, to make delivery of the declaration and appended notice, to the tenant in possession, prior to the term of the court at which he was required to appear; and upon making proof of this service by affidavit, he could obtain judgment nisi against the casual ejector, the court permitting the tenant to appear and defend only by entering into the consent rule, confessing the fictions of lease, entry, and ouster, as alleged in the declaration. This declaration and notice subserved the purpose of a writ, and constituted the process by which the defendant was brought into court.

The Code now provides, that “the suing out of a summons is the commencement of a suit, whether it be executed or not, if the suit be continued by an alias, or re-commenced at the next term of the court;” and this is made applicable to all kinds of actions, real as well as personal and mixed. — Code, 1870, §§ 3243, 2924. It is true, as argued, that in actions of ejectment according to the common-law form, there is strictly speaking no summons, but only the declaration, with a notice annexed to it and signed by the casual ejector, which is served on the defendant, notifying him to appear and defend as the real party in interest. Under our practice, they are filed with the clerk of the court in which it is proposed to bring the action, and he places them in the hands of the sheriff, to be served by him as other process. This is precisely the practice pursued in other forms of actions commenced by summons and complaint, including real actions in the nature of ejectment, There is no reason why we should unsettle the prevailing opinion that the same rule is applicable to each. The declaration is nothing more than our complaint, except in form only. Where the declaration and notice, after being filed with the clerk, are placed by him in the hands of the sheriff, or his deputy, to be served, they become process, the execution of which brings the defendant into court, and the action is commenced from the moment such process is sued out, or issued. The negligence of the sheriff in discharging his duty is not to be visited on the plaintiff, who is himself free from every imputation of negligence. And in the absence of any evidence to the contrary, by indorsement on the paper or otherwise, the time when process issued will be presumed to be the day of its date. — Angelí on Lim., §§ 311, 312.

In this view of the law, the action was commenced on May 10, 1881, the day of the filing of the declaration and the date of the notice, and not, as contended by appellant, on June 9th following, when the process was served by the sheriff.

The other points raised are rendered unimportant by this view of the law. The court did not err in giving the general charge to find for the plaintiffs, and the judgment is affirmed.