Miller v. Swann

• Decision Date: 02 May 1890
• Parties: MILLER v. SWANN ET AL.
• Court: Alabama Supreme Court

7 So. 771

89 Ala. 631

MILLER v. SWANN ET AL.

Supreme Court of Alabama

May 2, 1890

Appeal from chancery court, Jefferson county; THOMAS COBBS, Judge.

The bill in this case was filed by the appellant, D. B. Miller against the appellees, and sought to divest the legal title to a tract of land out of the appellees, and to enjoin an action of ejectment, which had been instituted to recover possession of said land. The facts in the case on this appeal are the same as they were on a former appeal, and as found in the report of the case in 82 Ala. 530, 1 South. Rep. 65; and reference is made to these reports. On the reversal of the decree by the court, and the remandment of the cause, the complainant amended his bill by alleging that the Alabama &amp Chattanooga Railroad Company had completed its road to a certain point in Jefferson county, Ala., and was running trains thereon; that a contract for the sale of said land was made between one Bagley and the said Alabama & Chattanooga Railroad Company in accordance with the act of congress granting the said lands; and that the said contract of sale has been ratified and confirmed by the said railroad company the state of Alabama, and the appellees as trustees, and that no action has been taken by the United States government either through its legislative body or judiciary, to have a declaration of forfeiture made. And the complainant further avers by amendment, that the said Bagley, before his death had made payments to the said Alabama & Chattanooga Railroad Company on his notes for the purchase money of the said land, and that, if there is anything remaining, the complainant is able and willing to pay whatever may be ascertained to be due. The other facts not mentioned here are sufficiently set forth in the opinion of this court. Upon the final hearing upon the pleadings and proof, the chancellor held that there was nothing in the amended bill and the additional testimony that takes the case out from under the influence of the former decision of this court, as found in 82 Ala. 530, 1 South. Rep. 65, and thereupon decreed that the complainant was not entitled to the relief prayed for, granted the motion of defendants, and dismissed the bill for want of equity. This decree is now appealed from, and the same is here assigned as error.

Watts & Son, for appellant.

Sam F. Rice and John Phelan, for appellees.

SOMERVILLE J.

This case has once before been decided by this court, at a former term. The facts of the case remain essentially unchanged. The chancellor now decides that there is nothing in the amended bill, or in the additional testimony, which takes the case out of the operation of the former decision, as it appears reported under the title of Swann v. Miller, 82 Ala. 530, 1 South. Rep. 65. The decree might well be affirmed upon the authority of that case. The printed argument filed in the case by the able counsel of the appellant, and his oral argument at the bar, are but reproductions of the one filed on his application for a rehearing on the former appeal. This argument was then considered by us, and we saw nothing in it which, in our judgment, required us to modify or recant the opinion then announced. In view of the importance of the questions raised, and the magnitude of the interests involved, however, we have held the cause up for further examination, in the light of one or more recent decisions of the supreme court of the United States which are asserted to bear on the subject in dispute.

The contest of title is between Swann and Billups, on the one hand, who derive their interest in the land from the state, and Miller, on the other, who claims through one Bagley under the Alabama & Chattanooga Railroad Company. The common source of title is admitted to be the state; the lands in controversy being a portion of those granted to the state of Alabama by the act of congress approved June 3, 1856, (11 U.S. St. at Large, pp. 17, 18,) to aid in the construction of certain railroads in this state. This grant was renewed and extended by another act of congress, approved April 10, 1869, (16 U.S. St. at Large, 45, 46.)

Much time and space may be saved by disposing of some points urged in the argument of appellant's counsel, as to which there can be no room for reasonable controversy.

So far as the question of forfeiture is concerned, it may be admitted that if the railroad company had the authority to sell the lands, and did so, prior to the legally authorized time, the condition violated would be a condition subsequent, and no one could take advantage of the violation of a condition subsequent except the United States government. The rule is unquestionable that ordinarily no one but the grantor, or his heirs or successors, can set up a failure to perform a condition subsequent.

The question of forfeiture does not, however, enter the case, as we view it. If there had been a forfeiture for violation of a condition subsequent, and the government had claimed the benefit of it, the title of Swann and Billups as trustees, as well as that of the state, under which they climed, would also be divested. The plaintiffs in ejectment would have no title; and this fact would of itself defeat their action, unless the defendants were estopped to deny the fact by reason of claiming through the alabama & Chattanooga Railroad Company, which corporation held under the state by grant, and solemnly admitted its title by so holding, and executing a mortgage back to the state on these lands to secure certain bonds loaned by the state, to expedite the construction of the road. Acts 1869-70, pp. 89-92. The basis of the defense to the bill, which seeks to enjoin the ejectment suit, is that the title of the plaintiffs in ejectment is good, and therefore there necessarily could have been no forfeiture. The only issue is whether such title has been divested by a lawful and authorized sale by the railroad company under the power conferred by the state, and under the acts of congress in question.

It has often been held, in the numerous cases of this class which have come before this court for consideration, as follows (1) That the title to these lands was vested by congress in the state, as trustee, for the purposes mentioned. (2) That the state had the right to transfer the lands to the railroad company, subject to the restrictions imposed by the acts of congress, which made the grant, and that the transfer was subject to these restrictions on the grantee's power of disposition. (3) That the legal title to the lands was to remain in the state until the road was completed, which event occurred on May 17, 1871; the state never having conveyed the legal title up to this time, unless to Swann and Billups as trustees for the creditors. (4) The state had no authority to sanction any sale of these lands except such as might be made in substantial compliance with the terms imposed by congress, and that it has made no attempt to do so. These propositions are fully supported by the decisions of ...