Alabama State Land Co. v. Kyle , 99 Ala. 474 ( 1892 )

HEAD, J.

The Alabama State Land Co. claims title to the land sued for by conveyance from Swann and Billups. The history of the title of Swann and Billups may be found in the reported cases of Swannn & Billups v. Gaston, 87 Ala. 569; Same v. Lindsey, 70 Ala. 507; Ware v. Swann & Billups, 79 Ala. 330; Standifer v. Swann & Billups, 78 Ala. 88; and it is unnecessary to repeat it here. The plaintiff’s prima facie title is made out, and the defendants set up no superior title in themselves other than that which they claim to have acquired by adverse possession of tbe premises for ten and twenty years. Until the State of Alabama divested itself of title to these lands by the authorized conveyance of the Governor executed to Swann & Billups, on the 8th day of February, 1877, it is clear the statute of limitations did not begin to run in favor of defendants.—Swann & Billups v. Gaston, 87 Ala. 569. But it is contended by the plaintiff that the statute did not then begin to run, because, by the conveyance to Swann & Billups, a trust was created for the use of the State, in this, that Swann & Bill-ups, the trustees, were required by the instrument to pay into the State treasury, after paying the costs and expenses of making the sales, ten per cent, of the proceeds of all sales of lands which should be made by them, under and by virtue of the conveyance, in order to reimburse the State certain interest it had theretofore paid by reason of its indorsement of the bonds of the Alabama and Chattanooga Railroad Company, which trust continued, not completely executed, until a period within less than ten years before the institution of the present suit. It appears that such a trust was so created and continued. The conveyance, in all other respects, was for the use of individuals. We have been referred to no authority in support of this contention of the plaintiff, and have been able to find none. This is an action of ejectment by the vendee of Swann & Billups, to enforce the legal title. No recovery can be had on the demise of the State, laid in the declaration, for confessedly the State parted with the legal title by the conveyance to Swann & Billups. From the moment of that conveyance, the grantees therein became seized as individuals, and invested .with full and ample power to sue and enforce the title so acquired. This is not an action by the State, asserting a title in itself against the adverse holding of the defendants. It could maintain no action, because it has no title. Swann & Billups having acquired the title, if thereafter they and their vendees acquiesced in the adverse possession of others for the period prescribed by the statute of limitations, they are, by such acquiescence, as effectually barred as if they had conveyed to such adverse holders. The fact that the State, in parting with its title, reserved an ulterior equitable interest in the proceeds of the lands can exert no influence whatever upon the question of legal title, with which we are now concerned. It will be time to consider its immunities from the operation of the statute, when it comes to enforce its equitable rights.—Bank of the United States v. McKenzie, 2 Brock, C. C. 393, op. by Marshall C. J.; Bank of Ky. v. Wister et al. 2 Peters, 318.

There was no error in admitting secondary evidence of the certificate of entry which purported to have been issued to Joseph Olayton. It was shown, in connection with evidence of Clayton’s possession and claim of ownership of the land under it, subsequently introduced, that the paper had been in the possession of Clayton, and that his attorney sent it to the Land Office in Washington. The original- being shown to be without the jurisdiction of the court, a copy, duly established by evidence as such, was admissible. It was not necessary to prove the execution of .the certificate. It was offered merely as color of title, to fix the boundaries of Clayton’s possession, and was admissible for that purpose, without proof of execution, in connection with other evidence that he actually held possession and claimed title under it.

There was clearly no error in permitting proof by Kyle of his agreement with Higgins, by which he constituted Higgins his tenant of that portion of the lands in controversy claimed by him.

As to the forty acres in suit, sold by Clayton to Golightly, and by Golightly to Kyle, and Kyle to Paden, the evidence shows a continuous, actual adverse possession by the several parties for more than ten years after the State parted with its title, and before this suit was brought. Under the facts shown in evidence, it will be presumed that Higgins’ possession, as tenant of Kyle, which Avas sliOAvn to have commenced, continued until Kyle returned to the place and found him there, at the time of the sale to Paden.—Clements v. Hays, 76 Ala. 280; Daniels v. Hamilton, 52 Ala. 105.

The entire lands claimed by Joseph Clayton, under the certificate of entry, lay in a body, as one tract. He, in fact, had and acquired no title to any part of them, but went into possession under claim of title to the whole, under the certificate. He built his house on the forty acres in section 36, and lived in it, and cleared and cultivated land around it, lapping over into a part of his entry in section 31. Luring his occupancy, he cleared portions of each forty embraced in the whole tract, and got wood and timber generally from all parts of the land. This possession continued until he sold to Golightly and Henry, and thereafter, except as to the lands sold Golightly and Henry, until his death; and a similar possession and claim of title continued in his widow and children from his death to the time of trial. The sale of the forty acres to Golightly did not sever the forty on which Clayton’s house stood from the rest of the tract. The latter still cornered with a forty unsold. We think, under the evidence, it must be held that the possession of Clayton, and his widow and children after him, must be referred to the boundaries of the land contained in the certificate of entry, which possession ripened into title before this suit was brought.

As to the forty acres sold to Sam Henry the case is different. As we have seen the statute began to fun with the execution of the deed by the State to Swann and Billups on the 8th day of February, 1877. The only evidence of possession of Henry’s land after that date is, that, in 1878 and 1879, Henry leased the land to a man who cut and hauled a large quantity of wood from it; and it is shown that after that time there was no other occupancy until i883, when Henry leased it to another tenant, who occupied it five years. This clearly falls short of that continuous possession for ten years essential to give title under the statute of limitations; and the judgment of the City Court will be reversed, and a judgment here rendered for the plaintiff for the twenty acres sued for, which was sold to said Henry by Clayton.

We have considered the questions raised by defendant’s counsel, viz.: 1. That the certification by the Department of the Interior, of the lands embraced in the grant, is too indefinite to show that these lands were a part thereof; 2. That it is not shown that there was a definite location of the Alabama and Chattanooga Railroad, by which their lands , could be identified; and 3. That the assignment of errors in this case is by the Alabama State Land Company, and, therefore, there can be no recovery on the demise of Swann and Billups; and that as defendants were in the adverse possession of the land when Swann and Billups conveyed to the Alabama State Land Company, that conveyance is void for maintenance, hence no recovery can be had on the demise of that company ; and think they are without merit. The evidence in the record overcomes the first and second objections. It is true there can be no recovery on the demise of the Alabama State Land Company, because of the doctrine of maintenance, as asserted; but, on due consideration, we construe the appeal and assignment of errors .to be by the plaintiff in the cause, in the name of a fiction, justifying a recovery here, as in the court below, on the demise of Swann and Billups. The judgment in this case will take effect as of the date of the submission of this cause.

Reversed and rendered.