Swann & Billups v. Miller , 82 Ala. 530 ( 1886 )

SOMEEYILLE, J.

— The lands in controversy are a portion of those granted to the State of Alabama by the act of Congress approved June 3, 1856 (11 U. S. Statutes at Large, pp. 17 and 18), to aid in the construction of certain railroads in the State. This grant was renewed by another act of Congress, approved April 10, 1869, found in 16 U. S. Statutes at Large, pp. 45 and 46.

We have often decided, that the legal title of so much of these lands as had not been previously sold in accordance with the foregoing acts of Congress, and in the manner prescribed by them, became vested in the appellants, Swann & Billups, as trustees, by the deed of the State of Alabama made to them, under authority of law, on February 8th, 1877. — Standifer v. Swann & Billups, 78 Ala. 88; Swann & Billups v. Lindsey, 70 Ala. 507. This fact is admitted by the complainant’s bill in this case, the. purpose of which is to compel a conveyance to him, by these parties, of the legal title to a tract of two hundred acres of these lands, upon the alleged ground that he is the bona fide purchaser and lawful owner of the equitable title, and is entitled to a conveyance of the legal title, upon settled principles of specific performance.

The title of the complainant, Miller, can be no better than that of Bagley, from whom he claims by various intermediate conveyances, and who derived whatever interest he had through two executory contracts of conveyance, made by one Duffy, professing to act as the authorized agent of the Alabama & Chattanooga Bailroad Company; the one of these contracts being made on September 13th, 1870, and having reference to one hundred and sixty acres of this land, exempting certain mineral rights reserved; and the other bearing date January 24, 1871, bargaining for the release of these reserved rights, and a sale ■ of other forty acres of the land. The inquiry then is, did Bagley have an equitable title to these lands, by virtue of these contracts of sale, thus made with Duffy at the dates specified?

The testimony fails to show that Duffy had any written authority from the railroad company, to act as its agent in making these sales ; nor is it shown that there ever was any vote of the board of directors, or any minute made of the corporate proceedings of this road, evidencing the appointment of Duffy as such agent The contracts of conveyance were, therefore, invalid, and of no legal effect in themselves. This was decided by us in the case of Standifer v. Swann & Billups, 78 Ala. 88; and re-affirmed in Ware v. Swann & Billups, at the last term, 79 Ala. 330.

This difficulty is sought to be obviated by the contention, that Duffy held himself out publicly as the agent of the railroad, and made these sales, receiving from Bagley, the vendee, a part of the purchase-money, and taking his notes for the balance ; that the moue'y went into the treasury of this corporation, and the officials of the company received the notes, and asserted ownership of them, with a full knoudedge of the facts attending the transaction. It is argued that this was a ratification of Duffy’s agency, and an adoption of his acts of sale, which would be binding as an equitable estoppel on the railroad company in its corporate capacity.

It is answered by the defendants, among other things, that, under the facts stated in the bill, these alleged contracts of sale — made, as we have said, respectively, on September 13th, 1870, and January 24th, 1871 — were in violation of the. act of Congress making the grant of these lands to the State, and were for this reason null and void, conveying, as is insisted, no title whatever to Bagley.

The position seems to us undeniable, that the burden is cast on the appellee, of averring and proving every material fact necessary to establish the validity of the alleged sales made to Bagley. In asking the court for affirmative relief, which could not be granted' unless complainant’s title was good, and he having only Bagley’s title,.it is but reasonable to require of him satisfactory evidence of the fact that these sales were made in the manner, under the conditions, and at the times prescribed by the law regulating these matters. Compliance with the terms of the act authorizing the sales, is a necessary condition precedent to their validity.

It is a material fact, that these contracts of sale between Duffy and Bagley were made before the completion of the Alabama & Chattanooga Railroad — an event which is shown not to have transpired until May 17th, 1871. This being so, they could be valid only under one of two conditions or states of fact: 1st, the lands sold must have been embraced in the first one hundred and ■ twenty sections, which the State, by the terms of the grant from Congress, had the power to sell, in order to commence the construction of the first twenty miles of the road; or, 2d, the mode and time of sale prescribed by section 4 of the original grant of June 3d, 1856, must have been complied with in every essential, its terms having been unchanged by the later act of April 10th, 1869, renewing the grant, save in certain particulars not affecting the questions before us for decision. These two propositions are manifest from the most casual inspection of these statutes. — 11 U. S. Stat. at Large, pp. 17-18 ; 16 U. S. Stat. at Large, pp. 45-46 ; Schulenburg v. Harriman, 21 Wall. 44, 57; Swann & Billups v. Lindsey, 70 Ala. 507; Swann & Billups v. Larmore, 70 Ala. 555.

It is shown by the record, that the lands in controversy were not embraced in the first one hundred and twenty sections, which were authorized to be sold in order to construct the first twenty miles of the Alabama & Chattanooga road, which succeeded to the rights accorded to two of the roads mentioned in the original grant. The only remaining inquiry then is, whether the power of sale, conceding it to have been executed under the authority of this corporation, was in accordance with the provisions of section 4, of the act of June 3d, 1856, as renewed by the act of April 10th, 1869; for, as said by the United States Supreme Court in Schulenberg v. Harriman, 21 Wall. 44, 59, where an act substantially similar was construed, “No conveyance in violation of the terms of those acts, the road not having been-constructed, could pass any title.”

Section 4 of this act reads as follows : “ That the lands hereby granted to said State shall be disposed of by said State only in the manner following, that is to say : that a quantity of land, not exceeding one hundred and twenty sections for each of said roads, and included in a continuous length of twenty miles of each of said roads, may be sold; and when the Governor of said State shall certijy to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land, hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed as aforesaid, and included within a length of twenty miles of each of said roads, may be sold; and so, from time to time, until said roads are completed; and if. any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.” This section is unchanged by the reviving act of April 10th, 1869, except that three additional years are allowed for the' completion of the road. The second section of the-same act of 1856 made the lands subject to the disposal of the legislature: but the first section limited this right, by declaring that they could be disposed of only as the tvorh progressed.- — 11 U. S. Stat. at Large, pp. 17-18.

It was, of course, beyond the power of the legislature to infringe the provisions of this law. Nor has that body attempted to do this. The act'of February 11th, Í870, enacted by our General Assembly, under the authority of which the Alabama & Chattanooga Railroad Company executed a mortgage to the State of Alabama, bearing date March 2d, 1870, provided that the company, while yet a mortgagor, should have “ the privilege and right of selling said lands, or any part thereof, in accordance with the act of Congress granting the same the proceeds of sale to be appropriated to the payment of the mortgage debt due by the company. — Acts 1869-70, pp. 89-92.

There is neither allegation nor proof that the requirements of section 1 of the act of 1856 had been complied with, in such manner as to authorize these alleged contract^ of sale, or, in fact, in any manner at all, at the times the sales are claimed to have been made, which, as before stated, was before the completion of the road. After the sale of the first one hundred and twenty sections, the effect of this section, taken in connection with section 1 of the same act, was, as said by the United States Supreme Court, in Schulenberg v. Harriman, 21 Wall. 59, to make it a “condition precedent to the conveyance by the State of any other lands, that the road should be constructed in sections of not less than twenty consecutive miles.” And the evidence of this fact, as prescribed by the act, is the official certificate of the Governor of the State, to the Secretary of the Interior, at Washington. The State itself being thus prohibited, by the terms of the act, from making the sales at the time they were made, the railroad company, and all persons acting under its authority, were equally prohibited from doing the same thing. It can scarcely be contended, that a sale made in contravention of the letter and policy of the law is ’"merely voidable. It can not be other than void ab initio.

It is no answer to this conclusion, that the effect of such an illegal sale would be only to forfeit the grant, and that as a ground of forfeiture it was a condition subsequent, of which no one else than the United States could claim the benefit. The rule undoubtedly is, that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee, but the grantor, his heirs, or successors ; and the government is bound by this principle. But the act of Congress conferring title to these lands was not a mere grant. It was a law, as well as a grant. Nor is it contended that anything done by the State, or by the railroad company, has operated, ipso facto, to forfeit the title of the ' lands, or divest it out of either of these grantors, so as to vest it again in the United States. The contention of appellants’ counsel is, that no title passed to Bagley, under or by virtue of these attempted sales, because they were in violation of the- letter and policy of the law which authorized the grant. No question of forfeiture is thus raised by the record.

It is said further, that the title of Bagley has been confirmed by subsequent legislation of the General Assembly bearing on this subject. These laws go no further than to protect the titles, legal and equitable, of all bona fide purchasers of these lands, lawfully acquired under conveyances, or contracts of conveyance, made in accordance with the terms of the foregoing acts of Congress. — Acts 1875-76, p. 145, § 19; Acts 1880-81, p. 101, § 1; Standifer v. Swann & Billups, 78 Ala. 88. No sale made in violation of law can be said to be bona fide, nor are the claims of a mala fide purchaser intended to be protected by these statutes.

, The contracts of sale, being void for illegality, were incapable of ratification. Only that which is voidable can be ratified, in any proper sense of the word, not that which is’ absolutely void.

These conclusions are sufficient, without the consideration of other questions, to authorize the reversal of the decree in this cause. The bill was without equity, and the chancellor erred in not so holding.

Reversed and remanded.