Watson v. Prestwood , 79 Ala. 416 ( 1885 )

STONE, C. J.

There can be no question that, if Jordan, plaintiff’s intestate, was seized of a legal title to the lands sued for, at the time of his death, then Watson, his administrator, can maintain ejectment for their recovery, against any one who does not show a termination of such title, or a better title in himself.—McCullough v. Wise, 57 Ala. 623; Brewton v. Watson, 67 Ala. 121. The lands sued for are a sixteenth section, which Jordan had purchased in his life-time, and of which purchase he held a certificate, issued under section 987 of the Code. Section 988 of the Code provides, that “such certificate conveys to the person therein named, his heirs or assigns, a conditional estate in fee, to become absolute on the payment of the purchase-money and interest; and which reverts to the State, for the uses originally granted, in the following cases: 1. When all the notes have become due, and the makers have left the State, or died insolvent. 2. When a recovery on such notes is defeated, by any defense avoiding the contract of sale. 3. When a recovery is had against all the makers, and execution has been returned ‘no property,’ by the proper officer of the county in which the township lies ; or when judgment is had, and execution returned against any one or more of such makers ‘no property,’ the others having left the State, or died insolvent.”

The present suit was tried on an agreed statement of facts, and it fails to set forth any one of the grounds, for which the statute declares the lands shall revert to the State. It does set forth that Jordan in his life-time paid several of the notes.

The main inquiry in this case is, whether, under the statute, the certificate shown to have been issued to Jordan, clothed him with the legal title, with condition of defeasance, or reversion on the subsequent happening of one of the enumerated events, on which the statute declares the land shall revert; or whether the payment of the purchase-money notes was made a condition precedent to the vesting of title. The phraseology employed forces us to adopt the former of these alternative propositions. There could properly be no reversion, unless title had first passed out of the grantor. The whole framework of the statute evidently contemplates that, as soon as the purchase-money notes are given and approved, and a certificate of purchase is issued, the purchaser shall take possession and occupy as owner; and that his possession can not be disturbed, so long as he observes and performs the obligations h'e takes upon himself by the purchase. It is equally manifest, that the legislative policy was to relieve the State of expense and delay in regaining control and ownership of the land, held as it was and is in trust for educational purposes, if the purchaser, either intentionally or otherwise, suffered any one of the enumerated causes of forfeiture and reversion to supervene. We hold, that the plaintiff, under the agreed statement of facts, made a prima facie case for recovery.

The defense rests on the State’s patent, issued to Cooper, on the strength of the indorsement of the certificate of purchase, made by Jordan’s widow to him, Cooper. There is no attempt to show any authority in her to make the indorsement, other than the fact that she was the widow of Jordan, the purchaser. That gave her no such authority; and this case must be treated as if no attempt had been made to connect Cooper and the patent he obtained with Jordan’s purchase.

We have stated that the present record discloses neither of the grounds which the statute declares shall operate a forfeiture of the purchase, and a reversion of the lands to the State. It follows that, under the facts shown in this record, the State had no authority to make other disposition of the land, and the patent issued to Cooper is invalid and inoperative against Jordan’s heirs and estate, because nothing is shown to connect them with it, nor to conclnde them by it.—Saltmarsh v. Crommelin, 24 Ala. 347; Stephens v. Westwood, 25 Ala. 716; Bates v. Herron, 35 Ala. 117; Hallett v. Eslava, 3 S. & P. 105; Stephens v. Westwood, 20 Ala. 275; Johnson v. McGehee, 1 Ala. 186. The prima facie case made by the certificate of purchase was not overcome, and the Circuit Court erred in the charge given to the jury.

Reversed and remanded.