Brannan v. Henry

• Citation: 175 Ala. 454,57 So. 967
• Parties: BRANNAN v. HENRY.
• Decision Date: 18 January 1912
• Court: Supreme Court of Alabama

57 So. 967

175 Ala. 454

BRANNAN v. HENRY.

Supreme Court of Alabama

January 18, 1912

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Mary Henry against Lewis I. Brannan. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 142 Ala. 698, 39 So. 92, 110 Am. St. Rep. 55.

Anderson and McClellan, JJ., dissenting.

Rich &amp Hamilton, for appellant.

Ervin &amp McAleer, for appellee.

SAYRE J.

In this case the appellee recovered judgment against the appellant in statutory ejectment for a quarter section of what was proved to have been swamp and overflowed lands conveyed by the government of the United States to the state of Alabama. Plaintiff claimed under the state. The defendant relied upon title acquired by an adverse possession for 10 years. Plaintiff put in evidence a patent purporting to have been issued by the state on January 2, 1872, to Thomas Henry, who is described therein as assignee of W. D. Mann, and a certified copy of the probated will of Thomas Henry devising to her the land described in the declaration. On the theory perhaps that they were private acts, plaintiff also offered in evidence the act of February 12, 1879, entitled, "An act to further regulate the securing, preservation and sales of the swamp and overflowed lands of the state" (Acts 1878-79, p. 198), and the act of April 4, 1911, entitled, "An act to authorize the introduction in evidence of documents executed prior to February 12, 1879, by the Governor in person or in his name by his secretary, purporting to convey any of the state's lands, but ineffective as conveyances, and certified copies of the record of any such documents which have been recorded for as much as twenty years, and to prescribe the probative effect of such documents and copies." Gen. Acts 1911, p. 192. Appellant holds that both these acts are unconstitutional, void, and of no avail to plaintiff, the effect of whose patent depended upon these statutes, the first confirming prior sales of swamp and overflowed lands where the purchase money had been paid to persons acting, or professing to act, for the state, the second giving evidential effect to patents defectively executed, and which recite either the payment of the purchase money or the deposit of a receipt or certificate of the officer authorized to receive the money acknowledging that payment had been made.

The act of 1879 had full discussion by able counsel in Jordan v. McLure Lumber Company, 170 Ala. 289, 54 So. 415, was carefully considered by the entire court, and was held to be free of constitutional objections such as are now urged against it. We do not see that any good purpose could be served by reopening the discussion.

Several faults are found in the act of 1911 as applicable to this case. For one, it is said that the title of the act gives no warning of that provision which gives a prima facie evidential effect to documents which recite the deposit of a receipt or certificate of the officer authorized to receive the money acknowledging that such payment had been made, as is the case in the patent put in evidence by the plaintiff. The argument seems to concede the validity of so much of the statute as gives effect to documents purporting to convey lands of the state and reciting payment of the purchase money; at least, it says nothing to the contrary. But it is said that the recital of a receipt or certificate of payment is nothing more than the recital of a recital. True; but we are unable to approve the inference drawn by appellant. If the title of the act had undertaken to catalogue those considerations which conveyances to be affected should recite, had particularly provided for the case of conveyances reciting payment, and had omitted mention of the case of those reciting mere receipts or certificates, the argument would hold. But that is not the nature of the title. It is comprehensively broad, and foreshadows an act dealing with documents purporting to convey any lands of the state without regard to the character of the recital of consideration to be found in such documents, without regard indeed to whether there is any recital of the sort. Section 45 of the Constitution 1901, to which the appellant here refers, has been much discussed, and is well understood. Mere generality of title does not invalidate a statute, so long as it fairly and reasonably expresses the subject-matter of the act, and is not made a cover for legislation incongruous in itself. Toole v. State, 170 Ala. 41, 54 So. 195; State v. Street, 117 Ala. 203, 23 So. 807. In this case the title of the act is not unreasonably broad. It does fairly cover the provision to which the appellant objects, and contains no misleading catalogue. The act, as for anything appearing so far, is valid.

The last cited case of State v. Street sufficiently demonstrates the defect in appellant's argument that the act contains two subject-matters because it provides, not only for the probative effect of the original document, but provides for the introduction in evidence of certified copies where the original had been recorded for as much as twenty years. No reason why the Legislature might not in one act dispose of the subject of the patents it had in mind by giving effect to them as muniments of title and providing means of proving them can bulk large enough to require extended notice. The proposition contended for in the argument would seriously embarrass legislation by requiring laws to be narrowly and excessively restrictive in scope and operation, and by the multiplication of their number, without avoiding or suppressing any mischief against which the constitutional provision is directed.

But this suit was brought some four or five years before the passage of the act of 1911, and on this fact appellant bases a contention that it is unconstitutional in its application to this case. A clause of section 95 of the Constitution provides that: "After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit." Retrospective legislation dealing with the laws of evidence in criminal prosecutions and rendering a conviction more easy than it would have been at the time when the offense was committed is ex post facto and prohibited but "the rule is otherwise as to changes in the rules of evidence in civil cases. These pertain to the remedy, and form no part of the obligation of an existing contract. It is a plain proposition, free from all doubt, that no one possesses a vested right to existing rules of evidence, in civil causes of action, and the lawmaking power is at liberty to change them, from time to time, within the broad latitude of their sound discretion." Goodlett v. Kelly, 74 Ala. 213; State v. Thomas, 144 Ala. 77, 40 So. 271, 2 L. R. A. (N. S.) 1011, 113 Am. St. Rep. 17, 6 Ann. Cas. 744. And the general principle is that statutory alterations in rules and methods of procedure, including rules of evidence, are always retrospective unless there be some good reason against it. Endlich, Interp. Stat. §§ 282, 286. "Statutes which relate alone to the remedy, without creating, enlarging, or destroying the right, operate generally on existing causes of action, as well as those which afterwards accrue." Coosa River Co. v. Barclay, 30 Ala. 120; Tutwiler v. Tuskaloosa Co., 89 Ala. 391, 7 So. 398; Birmingham Trust & Savings Co. v. Currey, 57 So. 962. The act of 1911 in form provides a rule of evidence. By the act of 1879 the patent of 1872 became in effect a transfer of the state's original and undisputed title upon condition that the purchase money had been paid, and, under the act of 1911, it became in effect a deed subject to be defeated by proof that the purchase money had not been paid. Both statutes are curative in form and in effect. Curative statutes are by their very nature intended to act upon past transactions, and are therefore wholly retrospective. Their effect, in the absence of an express provision to the contrary, and saving the vested rights of innocent third parties, is to make the acts to which they relate valid ab initio. The power to cure past transactions defectively executed is a beneficent power. The last clause of section 95 of the Constitution does not abrogate the power of the Legislature to act in that way. It preserves the rights of the parties to pending causes as they existed under the law at the time of the passage of an act, but puts no restraint upon the power of the Legislature in respect to the regulation of the manner in which those rights may be proved, except that it must not, under the guise of regulating the presentation of evidence, contrive in pending suits to take away a cause of action or destroy any existing defense. The act of 1911 has no inhibited effect. It cannot operate to impair any right defendant then had or may have since acquired. As to causes of action and rights of defense it leaves parties just where they were, but arms them, whether plaintiffs or defendants with means of proving a fact about which, in view of the state's repeated recognition of it, there ought now to be no doubt. It leaves the defendant as free as he ever was to prove any title he may have acquired at any time or in any way. To take cognizance of the difficulties in making proof which, as it happens in this case, the statute shifts from the plaintiff to the defendant--proof which, it may be noted, does not affect defendant's title, though it does go to plaintiff's title in its bare legal aspect--for the purpose of destroying the statute, would be to deny the right of the Legislature to pass laws affecting the rules of evidence. That power has been too often conceded by the courts to be now...