Brue v. McMillan

• Decision Date: 18 January 1912
• Citation: 175 Ala. 416,57 So. 486
• Parties: BRUE v. MCMILLAN.
• Court: Alabama Supreme Court

57 So. 486

175 Ala. 416

BRUE v. MCMILLAN.

Supreme Court of Alabama

January 18, 1912

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action between T. E. Brue and Thomas M. McMillan. Judgment for the latter, and the former appeals. Affirmed.

Rich &amp Hamilton, for appellant.

R. P Roach, for appellee.

SAYRE J.

The judge of the law and equity court of Mobile, a court exercising jurisdiction in Mobile county only, signed the bill of exceptions in this case while in Clarke county, and this fact gives appellee occasion for a motion to strike. In Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843, decided at a time when, under the statute, judges might extend the time for signing bills of exception, the bill was stricken, because the judge of probate made the order extending the time for a bill while absent from his county; this on the ground that the judicial power of probate judges is limited to the territory of the counties in which they are elected. On the other hand, it was held, in Ex parte Nelson, 62 Ala. 376, that a circuit judge might validate a bill of exceptions while in a circuit different from that in which the trial was had; this for the reason that his jurisdiction is coextensive with the state. Circuit judges have the same official authority and power in one county as in another. The judge of the law and equity court of Mobile has and exercises all the jurisdiction and the powers which are exercised by judges of the circuit court. Act of August 6, 1907 (Sess. Acts 1907, p. 562). He may, when deemed expedient by him and the circuit judge, or when directed by the Governor in writing, sit upon the circuit bench in any county in this state. Code, § 3300. He had, therefore, authority to sign the bill of exceptions when and where he did, and the motion to strike must be overruled.

Objections taken and elaborately argued against the constitutional validity of 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 12th, 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), have been recently considered at length by this court, as to the first-named act, in Jordan v. McLure Lumber Co., 54 So. 415; as to the second, in Brannan v. Henry, 57 So. 967. We find no occasion for a repetition of what was said in those cases.

This case, like those to which we have just referred, involved the title to a part of what were the swamp and overflowed lands patented to the state by the government of the United States. The trial was by the court; no jury having been demanded. Evidence was offered by the parties during the 28th and 29th days of March, 1911. Defendant offered as evidence of title a patent of date February 20, 1872, purporting to convey the state's title to the Mobile & Ohio Railroad Company, as assignee of James Dunbar. This patent purported to have been executed by Robt. B. Lindsay, Governor of Alabama, by W. V Chardavoyne, secretary, and recited that there had been deposited in the office of the Secretary of State a certificate of the receiver of the swamp and overflowed lands of Alabama, in and for the district of Mobile, whereby it appeared that full payment for the land had been made by James Dunbar according to the act of February 8, 1861 (Laws 1861, p. 12). To this patent and its recitals, the plaintiff (appellant) objected, on the ground that the patent had not been executed by the Governor; nor was it sealed with the great seal of the state, as required by the Constitution. To the recitals, the objection was taken that there was no authority in law for the Governor's secretary, by whom the Governor's name had been signed to the patent, to bind the state, or any one, by the statement of the facts recited. The court took these objections under advisement, and proceeded with the hearing. On April 7th next, the court announced that plaintiff's objections were overruled, and rendered judgment for the defendant. To this ruling and to the judgment, plaintiff reserved exceptions. In the meantime, the act of April 4, 1911, had been approved. When the objection was taken to the patent as evidence of title, it was well grounded in law and fact. As color of title, in connection with acts of possession and ownership, it was at all times admissible, and when the ruling was announced the objection to the patent...