Knabe v. Burden

• Decision Date: 20 December 1889
• Citation: 7 So. 92,88 Ala. 436
• Parties: KNABE v. Burden.
• Court: Alabama Supreme Court

7 So. 92

88 Ala. 436

KNABE v. Burden.

Supreme Court of Alabama

December 20, 1889

Appeal from circuit court, Randolph county; J. R. DOWDELL, Judge.

Ejectment by Julian C. Knabe, appellant, against Calvin J. Burden appellee. The claims to title by both plaintiff and defendant, respectively, are set out at length in the opinion. After plaintiff introduced in evidence his certificate of entry issued by the register of the United States land-office at Montgomery, Ala., he rested. The defendant offered in evidence the patent from the state of Alabama to C.J. Ussery, referred to in the opinion. The plaintiff objected on the following grounds: "(1) The said patent is illegal evidence; (2) it fails to show any right in the state of Alabama to grant the said patent; (3) it fails to show that the lands therein described were ever selected or set apart by the state of Alabama as required by law; (4) it fails to show that the United States ever parted with the title to said lands to the state of Alabama." The court overruled each objection, and plaintiff moved to exclude the patent from the jury as evidence, which the court overruled. Upon the evidence disclosed, the court, at defendant's request, instructed the jury that "the jury is charged, if they believe all the evidence in this case, they will find for the defendant;" to which plaintiff excepted. There was verdict and judgment for defendant, and plaintiff appeals.

Samuel Henderson, W. M. Smith, and W M. Lackey, for appellant.

N. D. Deson, for appellee.

SOMERVILLE J.

The title of the plaintiff to the land in controversy is based on a certificate of entry issued by the register of the United States local land-office at Montgomery, which instrument bears date December 2, 1885. The statute provides that such a certificate, when lawfully issued, shall "vest the legal title in the holder or his assignee, and must be received as evidence of such title." Code, 1886, § 2782; Case v. Edgeworth, 87 Ala. 204, 5 South. Rep. 783. This statute does not differ in substance from the act of 1812, which was construed to confer on the holder of the certificate such a title as to maintain an action of ejectment, which is a possessory action, and capable of being sustained on the right of possession. It was held not to confer the fee of the land, which remained vested in the government, in trust for the holder of the certificate, until the patent was issued. Bullock v. Wilson, 2 Port. (Ala.) 436; Masters v. Eastis, 3 Port. (Ala.) 368; Deffeback v. Hawke, 115 U.S. 392, 6 S.Ct. 95. The statute was not intended to determine that the holder of such certificate held more than an equitable title, as against the United States government, before the patent was issued. As evidence of such title, it can only be prima facie, or merely presumptive. The legislature had neither the power nor the intention to make it conclusive. Sedg. & W. Tr. Title Land, (2d Ed.) §§ 890, 891; Wilcox v. Jackson, 13 Pet. 498; Tied. Real Prop. § 746.

Upon this evidence the plaintiff was prima facie entitled to recover the land, and the onus was cast on the defendant to show a better title. This he attempted to do by introducing in evidence a patent from the state of Alabama, issued in due form, on January 21, 1858, to one Ussery, through whom defendant claims title by unbroken chain. It is also shown that the defendant, and those through whom he claims, have been in the open, notorious, and adverse possession of the land, exercising acts of ownership over it, since the issue of the patent, or for more than 30 years. To the introduction of this instrument it was objected that there was no preliminary evidence of any right in the state of Alabama to make a grant of the lands described, or that the state had ever acquired the title to the lands from the general government. Such a patent is made evidence by statute, without further proof. Code 1886, § 2781. It is commonly said to be the highest evidence of title, and raises a presumption that all preliminary proceedings have been taken which justify its issue. 3 Washb. Real Prop. (3d Ed.) 205; Polk v. Wendal, 9 Cranch, 87; Minter v. Crommelin, 18 How. 87.

The defendant's contention is that the lands were granted, by act of congress, to the state of Alabama, for the support of public schools, by virtue of the statute approved May 20 1826, (4 U.S. St. at Large, 179,) having been selected by the secretary of the treasury pursuant to the duty imposed upon him by section 2 of that act. There can be no doubt of the legal proposition that a title to government lands may pass by legislative grant as effectually as by a patent. Such a grant, therefore, by congress, necessarily prevails over a subsequent title asserted by the holder of a subsequent patent, or certificate of entry, from the general government. Megerle v. Ashe, 27 Cal. 322. And in such case the subsequent title may be assailed collaterally, at law, in an action of ejectment. The principle being that a patent from the United States cannot affect a pre-existing title in a third person, it is held to be void as against a prior title acquired from the same source, either by legislative grant, by patent, treaty, or otherwise; and, being a mere nullity, it may be declared so at law, without resort to a court of equity. Sherman v. Buick, 93 U.S. 209; City of New Orleans v. De Armas, 9 Pet. 224; Bates v. Herron, 35 Ala. 117, and cases cited; Stoddard v. Chambers, 2 How. 317; Patterson v. Winn, 11 Wheat. 380; Sedg. & W. Tr. Title Land, (2d Ed.) § 887. To prove his title, then, it is necessary for the defendant not only to show a grant from the general government, but that the grant has attached to the particular lands in controversy. If the taking effect of the grant depends upon any condition, precedent or subsequent, the performance of this condition must be made to appear, either positively or presumptively. Megerle v. Ashe, 27 Cal. 322, supra. The patent from the state of Alabama, dated January 21, 1858, purports to have been executed under the authority of the act of the Alabama legislature, approved January 15, 1828, which authorized the sale of the sixteenth section granted by congress for the support of public schools. This act was passed in exact conformity to the act of congress approved March 2, 1827, which permitted such...