Holmes v. State

• Decision Date: 29 November 1893
• Citation: 100 Ala. 291,14 So. 51
• Parties: HOLMES ET AL. v. STATE.
• Court: Alabama Supreme Court

14 So. 51

100 Ala. 291

HOLMES ET AL. v. STATE.

Supreme Court of Alabama

November 29, 1893

Appeal from city court of Birmingham; Henry A. Sharpe, Judge.

Bill by the state of Alabama against Mack Holmes and others to enjoin defendants from digging, mining, or selling coal from certain lands described in the bill, and from cutting timber from, or in any way impairing the value of, said lands. On the final submission of the cause a temporary injunction, which had been previously issued, was made perpetual, and defendants appeal. Affirmed.

The bill alleges that the state had title to the lands in controversy from the United States as school indemnity lands as is shown by a certified list made an exhibit to the bill in which the selection of said lands by a duly-appointed agent for the state of Alabama was approved by the department of the interior at Washington. The bill further averred that the defendants had no title to the land, either legal or equitable; that an attachment suit had been commenced to try the title to said lands; and that the defendants were mining and selling coal therefrom, and were insolvent. A motion was made by the defendants to dismiss the bill for the reason that the bill appears to have been filed without any legal authority for so doing. On the hearing of this motion there was submitted a letter from Thomas G. Jones, governor addressed to Hon. John Caldwell, in which he was authorized and directed "to bring all such suits, either at law or in equity, as in your [his] judgment may be deemed advisable to recover the possession of school indemnity lands." The bill showed that it was filed by John Caldwell with other counsel. This motion was overruled by the court. The defendant then interposed a demurrer, assigning several grounds, which demurrer was overruled by the court.

The defendant Mack Holmes then filed his answer, denying that he was a trespasser, but alleged that he held a legal title to said lands by virtue of having entered the same as a homestead, and commuting said homestead entry to a cash entry, upon which a final receipt or certificate had been issued to him from the land office at Montgomery, which final receipt or certificate is still in force, and has never been canceled. The answer further denies that the state has any legal title to the land in controversy for the reasons: (1) That they were selected for the state by one John H Caldwell, who was appointed for that purpose under an agreement to give him one-fourth of the land secured by him; that this agreement and appointment were void, and therefore the selections were void. (2) That one of the tracts of land was selected in lieu of a tract in township 17 N., range 7 W., Huntsville meridian; but there was no such township in the state of Alabama, and that the selection of the former tract in lieu of the latter was therefore void. (3) Because, as shown by the bill of complaint, the lands in question were valuable coal lands, and, being such, could not be selected as indemnity school lands. (4) That the law required these selections to be made from the most contiguous vacant lands, but that the state did not do this. This answer was prayed to be taken as a cross bill, and that upon the final hearing thereof the title of the state be canceled; that title be vested in the defendant; and that the complainant's ejectment suit be perpetually enjoined.

The facts of the case as shown by the evidence were that John H. Caldwell was duly appointed agent for the state to select the school indemnity lands as approved by the act of congress; that in the discharge of his duties as such agent he selected the lands involved in this suit, certified the same to the department of the interior, where his selection was approved, as shown by his certificate thereof, vesting the title to said lands in the state of Alabama. The evidence for the defendant was to the effect that the defendant holds and entered the lands in controversy as a homestead at the land office in Montgomery, Ala., in August, 1881; that thereupon he built a house on the lands, and cleared and cultivated a part of it, and resided thereon until 1884, when he made application to the register in the land office in Montgomery to commute his homestead entry into a cash entry; that the register gave proper notice of this application, and that the said Holmes made proof in support of same; that thereafter, on June 17, 1884, the application was allowed by the register and receiver, who received the commission price to be paid by the defendant at $1.25 per acre, and that there was issued to him a final receipt therefor, signed by the receiver, and a certificate, signed by the register, that said Holmes was entitled to a patent on the lands.

Some time in the year 1886 a contest of Holmes' right under his interest was commenced by one Maxwell before the register and receiver at Montgomery, and proof was submitted to them upon said contest, but the register and the receiver were divided in their judgment, and on that account certified the contest to the commissioner of the land office for his decision thereon. The commissioner of the land office rendered a decision on October 16, 1888, and decreed that the homestead entries of the defendant Holmes should be canceled. On the final hearing of the cause, on pleadings and proof, the court dismissed the answer of the defendant as a cross bill, and decreed that the injunction theretofore granted against the defendants should be made perpetual.

Lea &amp Bell and Jo. G. Crews, for appellants.

Smith &amp Lowe and John H....