Jordan v. McClure Lumber Co.

• Decision Date: 06 July 1910
• Citation: 170 Ala. 289,54 So. 415
• Parties: JORDAN ET AL. v. MCCLURE LUMBER CO. ET AL.
• Court: Alabama Supreme Court

54 So. 415

170 Ala. 289

JORDAN ET AL. v. MCCLURE LUMBER CO. ET AL.

Supreme Court of Alabama

July 6, 1910

Rehearing Denied Jan. 12, 1911.

Appeal from Chancery Court, Washington County; Thomas H. Smith Chancellor.

Suit by the McClure Lumber Company and others against Fred G. Jordan and others. From a decree for defendants, complainants appeal. Affirmed.

The following is the agreed statement of facts filed in this case September 5, 1908:

"(1) That this agreement may be used by either party upon and in the trial of each of the above stated cases, subject however, to all proper objections for irrelevancy and immateriality, and that this agreement should be filed in each of the said cases, and shall be treated as properly in each of said cases.

"(2) That all of the lands in controversy in all of said cases are what are known as 'swamp' and 'overflow' lands, and were certified and patented to the state of Alabama by the United States under and pursuant to Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519.

"(3) That on the 13th day of February, 1872, the Governor of Alabama issued a proclamation or order declaring and ordering that all swamp lands and overflow lands were thereby and thereupon withdrawn from sale.

"(4) That 'An act for the sale of swamp and overflow lands of the state of Alabama' approved February 8, 1861 (Acts 1861, p. 12), was repealed by an act approved February 26, 1872 (Acts 1871-72, p. 53), in all respects as appears from the last-mentioned act.

"(5) That Henry St. Paul, as swamp land commissioner or agent of the state of Alabama, and John R. Tompkins, as a receiver appointed by the Governor of Alabama under the provisions of the act of February 8, 1861, executed and issued the hereinafter named certificates all dated February 12, 1872, numbered as and for the land hereinafter claimed, each of which certificates recited that the parties to whom they were issued had purchased and paid for the land therein described. The numbers, name of purchaser, and description of land contained in each of said certificates, respectively, are as follows: 1797, Jerry Baker, N.W. 1/4, Sec. 4, T. 6 N. 2 W.; 1798, Andrew Wright, S.W. 1/4, Sec. 4, T. 6, R. N. 2 W.; 1796, Cyrus Gill, S. 1/2 of S.E. 1/4, and S.E. 1/4 of S.W. 1/4, Sec. 5, T. 6, R. N. 2 W.; 1799, John Blake, N.E. 1/4 of Sec. 8, T. 6, R. N. 2 W.; 1800, John Townsley, N.W. 1/4, Sec. 8, T. 6, R. N. 2 W.; 1801, Thomas Ellis, S.E. 1/4, Sec. 8, T. 6, R. N. 2 W.; 1803, Henry Boise, N.W. 1/4, Sec. 8, T. 6, R. N. 2 W.; 1804, Joseph Hatch, S.W. 1/4 of Sec. 9, T. 6, R. N. 2 W.; 1810, John Dunham, N.E. 1/4, Sec. 17, T. 6, R. N. 2 W.; 1811, Aaron Butler, S.E. 1/4, Sec. 17, T. 6, R. N. 2 W.; 1812, Edward Chappelle, N.E. 1/4, Sec. 20, T. 6, R. N. 2 W.; 1812, Frank Dyson, N.W. 1/4, Sec. 20, T. 6, R. N. 2 W.; 1814, Daniel Tyerl, S.E. 1/4, Sec. 20, T. 6, R. N. 2 W.; 1815, Benjamin Stokes, S.W. 1/4, Sec. 20, T. 6, R. N. 2 W.; 1816, George Reid, N.E. 1/4, Sec. 21, T. 6, R. N. 2 W.; 1817, Henry Cale, N.W. 1/4, Sec. 21, T. 6, R. N. 2 W.; 1818, John Williams, S.E. 1/4, Sec. 21, T. 6, R. N. 2 W.; 1819, William Ayres, S.W. 1/4, Sec. 21, T. 6, R. N. 2 W. (The description of this land should be read as all lying in township 6 north, and range 2 west.)

"(6) That no one of the men named above ever lived on the lands described in the certificate issued in his name, or even in Washington county, nor did he enter upon or settle on the said lands, or any part thereof, at any time before the so-called patents herein mentioned were issued therefor to the assignee of his said certificate, and that no settlement of any kind except as hereinafter stated was ever made on any of the lands above described before the 10th day of October, 1903.

"(7) That each of said certificates purports to have been assigned to the Mobile & Ohio Railroad Company, and thereafter so-called patents were issued to the Mobile & Ohio Railroad Company. Each of said patents were signed as follows: 'Robert B. Lindsey, Governor of Alabama, by W. V. Chardavoyne, Secretary.' That the said Chardavoyne was the private secretary of Robert B. Lindsey, Governor of Alabama, and that the only authority that the said Chardavoyne had for signing said patents was a general instruction by the Governor to his secretary to sign the Governor's name to such patent for swamp and overflow lands as properly and legally should be signed by the Governor. That none of said patents had affixed thereto the seal of the state of Alabama, but each of them had affixed thereto and impressed thereon and recited therein a seal containing the words, 'Land Office of Alabama.' That none of said patents were attested by the Secretary of State. That all of said so-called patents were dated February 20, 1872. That, with the exception of numbers, names, and description of lands, all of them are the same as the socalled patent which was issued as herein before explained to the Mobile & Ohio Railroad Company, as assignee of Andrew Wright, for the S.W. 1/4 of section 4, township 6 N., range 2 W., which original so-called patent is hereto attached, marked 'Exhibit A' and made a part hereof, for the purpose of more fully explaining and showing the exact method of execution, and the contents of each of the so-called patents, the others of the said patents as above stated being executed in the same manner and on the same blank form and being, respectively, based upon the respective certificates above mentioned, all running to the Mobile & Ohio Railroad Company, as the assignee of the respective party to whom said certificates were issued. That none of said so-called patents were ever recorded in the office of the Secretary of State, but in a tract book kept in the office of the Secretary of State there was entered in tabulated form, following the ruling and arrangement of such tract book, the following data, with respect to each of said certificates: The number of the certificates, its date, the name of the party to whom issued, the description of the land purchased, and the purchase price, and these entries in so far as concerns the land described correspond with the certificate above described, and that all of said patents so called were recorded in the office of the judge of probate of Washington county, Ala., on January 23, 1886.

"(8) That the following conveyances, each of which embrace all of said lands, were executed and recorded as hereinafter claimed: Two trust deeds executed on May 12, 1879, by the Mobile & Ohio Railroad Company, to the Farmers' Loan & Trust Company, trustees. One of said trust deeds secures a $7,000,000 bond issue, and the other secures certain debentures. One was filed for record in the office of the probate judge of Washington county on June 16, 1879, and the other was filed for record on June 18, 1879. They both include all the lands above described, and both confer on the trustee power to sell and dispose of the land at private sale, etc. The Farmers' Loan & Trust Company as trustee executed to H. R. Wager and Willard B. Wells a deed conveying all of the above-described land, which deed was dated July 7, 1890, and recorded October 11, 1891, in the office of the judge of probate of Washington. Willard B. Wells and wife executed to Fred L. Wager under date of October 20, 1890, a deed purporting to convey an undivided one-sixth interest in all of the above-described lands. This deed was filed for record in the office of the judge of probate of Washington county, Ala., on April 20, 1893. Willard B. Wells and wife executed to Nanta Wager under date of October 20, 1893, a deed conveying an undivided one-eighteenth interest in said land. This deed was filed for record in the office of the judge of probate of Washington county, Ala., on December 2, 1893. The remainder of whatever interest the said Willard B. Wells had in said land passed by his will to his wife, Sallie T. Wells, and his son, Morris D. Wells. The said Sallie T. Wells is dead, and whatever interest she had in said lands has passed by her will to her sole heir at law, namely, her daughter, Gertrude A. P. Page, one of the complainants in this cause. H. R. Wager and wife and Fred L. Wager and wife, Nanta Wager, executed to the McClure Lumber Company under date of January 1, 1907, a deed conveying a 44/54 interest in all of the above-described land. This deed was filed for record October 28, 1907. It is not admitted by the respondents that any of the grantors in the several conveyances above mentioned had any title the lands conveyed, this being one of the questions which was to be tried in each of these cases, but it is admitted that each and all of said deeds were regularly executed in proper form and self-proving, and that, if the respective grantors therein had any title to the lands described, such title passed by said deeds. The said Farmers' Loan & Trust Company, Willard B. Wells, Sallie T. Wells, Morris D. Wells, Gertrude A. P. Page, H. R. Wager, and Ophelia Wager, his wife, were always nonresidents of the state of Alabama.

"(9) That each and all of the grantees, except the Mobile & Ohio Railroad Company, in the several deeds set forth in the paragraph next preceding of this agreement, claimed the said land and assessed and paid the state and county taxes thereon each year from the time that his deed was executed, as hereinabove shown, for such grantee until such grantee conveyed away the land as hereinabove shown, and that the complainants in said cause have claimed and assessed and paid taxes thereon all of the above-described land ever since the execution of a conveyance to them as hereinabove shown. Any claim to said land and paying taxes thereon by the railroad company is left open to proof.

"(10) That on the 15th day of November, 1907, the Alabama Insane Hospital...