Choate v. Southern Ry. Co.

• Decision Date: 19 April 1905
• Citation: 39 So. 218,143 Ala. 316
• Parties: CHOATE v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

39 So. 218

143 Ala. 316

CHOATE v. SOUTHERN RY. CO.

Supreme Court of Alabama

April 19, 1905

Appeal from Circuit Court, Cherokee County; J. A. Bilbro, Judge.

Action by J. A. Choate against the Southern Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

C Daniel, for appellant.

Burnett Hood & Murphree, for appellee.

SIMPSON J.

This was an action of ejectment, brought by appellant (plaintiff) against appellee (defendant) to recover the right of way occupied by defendant through the lands described. At the first trial in the court below the plaintiff recovered the land, and on appeal this court reversed the judgment of the court below (Southern Railway Co. v. Choate, 119 Ala. 358, 24 So. 726), to which reference is made for a statement of the facts. In that case this court decided that the act of Congress which declared forfeited the former grant of lands to the state by the special proviso therein left the right of way of defendant's predecessor undisturbed, and states that "it was certainly within the contemplation of Congress that other railroad corporations, * * * invested with the privilege of eminent domain, might acquire easements over lands which had been donated in trust for certain specified roads." And the opinion also states that "it would only be just to protect from forfeiture by proceedings in the state court corporations which, in the only way it could be done had acquired the right of way after the grant and before the forfeiture, across the lands which had been forfeited." In that case, while the court noted the fact that many questions were raised as to the deficiency in the condemnation proceedings, yet it stated that those matters were not properly before the court, and he argues various omissions and deficiencies in the proceedings for condemnation.

The testimony, as recited in the bill of exceptions, shows that after said condemnation proceedings were regularly completed, and a decree rendered on the verdict of a jury assessing the amount which was to be paid by plaintiff, said plaintiff received the amount so awarded to him, to wit, $25, and executed a quitclaim deed for the defendant for said right of way. Said quitclaim deed was not signed by plaintiff's wife; and on that account the plaintiff claims it is void, as the right of way ran through plaintiff's homestead. We hold that, whatever might have been the result if plaintiff had chosen to appeal from the decree of the probate court, or otherwise attack the same by direct proceedings, the irregularities complained of cannot be made available in this collateral attack. Cautelou v. Whitley, 85 Ala. 247, 4 So. 610; Whitlow v. Echols, 78 Ala. 206; Bland v. Bowie, 53 Ala. 152.

While it is true that as a conveyance the quitclaim deed was invalid, yet there was no necessity of any conveyance, as under the statute the decree of condemnation vested the title on payment of the money. Code, 1896, § 1721. And the quitclaim showed the fact of plaintiff's receiving the money in satisfaction of the decree; also, that he was fully aware of the decision of the court, and did...