Ford v. Delta & Pine Land Co.

• Decision Date: 18 August 1890
• Citation: 43 F. 181
• Parties: FORD et al. v. DELTA & PINE LAND CO.
• Court: U.S. District Court — Southern District of Mississippi

43 F. 181

FORD et al. v. DELTA & PINE LAND CO.

United States Circuit Court, S.D. Mississippi.

August 18, 1890

Whitfield & Sullivan and Ed. Mayes, for complainant.

Frank Johnson and James R. Yerger, for defendants.

HILL J.

This cause is submitted upon bill, answers, exhibits, and proofs and argument of the counsel. The pleadings and proofs are exceedingly voluminous, but, after having been carefully examined and considered, they show the following facts:

On the 23d day of November, 1859, an act was passed by the legislature of this state 'to incorporate the Memphis Holly Springs & Mobile Railroad Company,' by the first section of which the corporation proposed to be chartered was authorized to purchase, receive, hold, and enjoy real and personal estate and the same to retain to them, their successors and assigns, so far as it may be necessary for their accommodation and convenience in the transaction of their business, and such as may in good faith be conveyed to them by way of security, or satisfaction of debts, or by donation; and the same to sell, grant, or otherwise dispose of, provided said company shall not be allowed to have in their own name, or in any other manner, for their use and benefit, more land than is necessary for the convenience of their railroad therein provided for; including the right of way and grounds proper and necessary for depots, fixtures, and buildings, pertaining to said road, for a longer period than five years after the completion of said road, on pain of forfeiture to the original owners of such lands, all right and title thereto. The nineteenth section of this act enacts that the capital stock and all the property and effects of said company shall be exempt from taxation until said road is completed, provided it is commenced within two years and completed within ten years from and after the passage of this act. Acts 1859-60, pp. 51-60. Nothing more is shown to have been done until the 26th of February, 1867, when the legislature passed 'An act to revive and amend the act of incorporation of the Memphis, Holly Springs & Alabama Railroad Company,' by the first section of which it is provided that the above-recited act is revived, and that the style of the railroad company shall hereafter be known as the 'Memphis, Holly Springs, Okolona & Selma Railroad Company. ' The second section of this last act provides that the company shall have three years in which to complete their road after the passage of the act. The third section of the act authorized the corporators to receive subscriptions in land to the capital stock of the company, provided the land shall be in five miles of the line of road, and shall be taken by the company at their valuation, unless objected to as excessive, in which event there shall be a re-estimate by three persons appointed by the judge of the probate court of the county in which the land may lie. These lands were to be conveyed to the company with covenants of valid title, and the persons making the subscription were to pay all the costs of the valuation and conveyance, and 10 per cent. on the amount subscribed, in the same installments granted to those who subscribed for stock in money, and for the amount of said stock both in land and money he shall be entitled to receive certificates of stock as in other cases. The next section provides that nothing in the act shall be construed to prevent the state from levying and collecting such income taxes or tax upon the travel on said road as might be provided from time to time by law. Acts 1866-67, p. 654. On the 21st day of July, 1870, there was passed an act changing the name of this railroad company to that of the Selma, Marion & Memphis Railroad Company, and said company was authorized to receive, in the way of subscription to its capital stock, lands lying anywhere within the state of Mississippi. On the 16th day of March, 1872, there was passed an act to facilitate the construction of the Selma, Marion & Memphis Railroad, by the third section of which it was enacted that all lands which had before that time been purchased by or forfeited to the state of Mississippi for taxes due and unpaid thereon, and which have been sold to said Selma, Marion & Memphis Railroad Company by the original owners of the same, shall be sold to said railroad company by the auditor of public accounts at two cents per acre, upon the presentation of satisfactory evidence of titles to said land to said railroad company from original owners, and satisfactory proof that not less than twenty-five miles of said road has been constructed; provided, the title to the land shall have been conveyed by said owners to said company prior to the passage of the act, and that in all cases where the said lands had been forfeited to or purchased by any of the levee boards in the levee districts in this state in which any of the lands lie, and are now held or claimed by the levee boards for the non-payment of levee taxes, and where the title is held by said railroad company, said levee boards are required to arrange for the payment of said taxes by receiving, in payment of the same, any of the bonds of the levee board. Acts 1872, p. 313. On the 18th day of March, 1873, the Selma, Marion & Memphis Railroad Company paid to the auditor of the state two cents per acre for the lands embraced in this suit, and took from him deeds of conveyance therefor. This railroad company was consolidated with the Selma, Marion & Memphis Railroad Company of Tennessee and Alabama, and this consolidation was ratified by an act of the legislature passed on the 6th day of March, 1873, entitled 'An act to amend the charter of the Selma, Marion & Memphis Railroad Company. ' No previous law was passed authorizing the consolidation, nor does it appear upon the face of the ratifying act under what charter the consolidation took effect, or what were the rights, privileges, and immunities accorded to the company by the act of consolidation. Acts 1873, p. 570.

The lands involved in this suit are those claimed to have been purchased from the original owners under the act of July 21 1870, which authorized the purchase of lands situate in any part of the state of Mississippi, and under the provisions of the act of 16th of March, 1872, authorizing the sale by the auditor to the railroad company, at two cents per acre. The title to the other lands held by the company need not, therefore, be considered. It is admitted that the title to these lands was vested in the state of Mississippi by patents from the United States under what is known as the 'Swamp-Land Act' of congress, and that the same have been entered under the act of the legislature of this state approved March 2, 1854, entitled 'An act to provide for the further issue of swamp-land scrip, for the purpose of aiding in the completion of the levees upon the Mississippi river,: and that patents have been issued therefor to the enters thereof. The title-deeds, filed as evidence in the cause, show that the parties or their assignees have conveyed to the Selma, Marion & Memphis Railroad Company most of the lands described in the bill. The greater part of these conveyances bear date at different times during the year 1871. The deeds recite that the lands described in them were sold and conveyed in payment for capital stock in said railroad company. The deeds from the auditor of the state to the company, filed as evidence, show that these lands were forfeited to the state for non-payment of taxes, and were sold therefor, and purchased by the state, and that they were sold by the said auditor to the Selma, Marion & Memphis Railroad Company at two cents per acre, under the provisions of the act of March 16, 1872. On the 18th day of March, 1871, the Selma, Marion & Memphis Railroad Company executed and delivered to Porter King, Abram S. Humphries, and J. M. Hill its mortgage or deed of trust, conveying to them as trustees all the property, real and personal, franchises, rights, and privileges then owned by said corporation, or to be by it afterwards acquired, as security for the payment of certain bonds, with interest coupons attached, issued by the authority of the said corporation, and which were transferred to bona fide holders. Said King never accepted said trust, and said Humphries some time afterwards died. Their places were filled, as authorized by said mortgage or trust-deed, by the substitution of J. W. Fant and A. A. Coleman, who accepted the trust, and continued to act as trustees until said corporation ceased to perform its functions. On the 18th day of December, 1874, Luke P. Blackburn, of the state of Kentucky, who was the owner and holder of five of said bonds, being of the denomination of $1,000 each, with matured interest coupons attached, amounting to more than $500, filed his bill in the circuit court of the United States for the western district of Tennessee against said corporation and trustees and a portion of the holders of like bonds and coupons, payment of the interest thereon not having been made, for the purpose of collecting the interest so due, and, if need be, the foreclosure of said mortgage or trust-deed. The bill in that case describes or sets out the lands designated in the bill in this as being embraced in said mortgage. Such proceedings were had in said cause that on the 24th day of July, 1882, a decree was entered by the court directing Bell W. Etheridge, clerk and master of said court and commissioner thereof, to sell the lands described in the mortgage and in the bill in that cause upon six and twelve months' credit, taking notes with approved sureties, and retaining a lien thereon for the purchase money. The record shows that the sale was made in pursuance to said decree, and was duly reported to and...