Reichert v. Jerome H. Sheip, Inc.

• Decision Date: 13 October 1921
• Docket Number: I Div. 192.
• Citation: 206 Ala. 648,91 So. 618
• Parties: REICHERT v. JEROME H. SHEIP, INC.
• Court: Alabama Supreme Court

91 So. 618

206 Ala. 648

REICHERT v. JEROME H. SHEIP, INC.

I Div. 192.

Supreme Court of Alabama

October 13, 1921

Rehearing Denied Nov. 17, 1921.

Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge.

Action by Jacob H. Reichert against Jerome H. Sheip, Incorporated. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellant.

Stevens McCorvey, McCloud & Goode, of Mobile, for appellee.

GARDNER J.

Suit in ejectment by appellant against appellee for the recovery of section 43, in township 1 north, range 1 east, Baldwin county, Ala. Upon the conclusion of the testimony in the cause the court gave the affirmative charge at defendant's request, and from the judgment following the plaintiff prosecutes this appeal.

The plaintiff offered in evidence a patent from the United States government to the representatives of one Louis Duret, which was issued on December 14, 1911, less than ten years before the commencement of this suit. Louis Duret died intestate and the identity of his heirs was proven by Anna Leland, to whom the heirs executed power of attorney. The land was then conveyed by Anna Leland to Max Collins, who in turn conveyed it to the plaintiff. Upon the first trial of this cause this deed was excluded by the trial judge for various reasons, but upon appeal to this court the rulings were held to be erroneous, and the cause reversed. Reichert v Sheip, 204 Ala. 86, 85 So. 267. The questions upon former appeal are without influence upon those now presented.

Upon the second trial the affirmative charge was given to the defendant, evidently upon the theory that the several matters offered in evidence by the defendants, over the objection of the plaintiff, were sufficient to overcome the plaintiff's case. The admission of this documentary evidence, as well as parol proof, is ably and elaborately argued by counsel for the respective parties in the cause; but the court is persuaded, after a careful consideration of this record, that the questions here for determination may be brought within a very narrow compass, and these will now be briefly treated.

The court admitted in evidence for the defendant, against plaintiff's objection, a conveyance from the heirs of Louis Duret to Walter Smith and J. H. Coke, executed February 2, 1831. The description contained in this deed reads as follows:

"A certain tract or parcel of land lying, being and situate in the county of Baldwin, described as follows, to wit: 'Beginning opposite the fork or junction of the Rivers Tensaw and Mobile and extending down the Tensaw river on the east side thereof to a bayou or creek and thence running back so far as to include six hundred and forty acres;' also one other tract or parcel of land, lying, being and situate in the county aforesaid and described as follows, to wit: 'Beginning on the south side of the first bayou or creek which lies below the fork or junction of the Tensaw and Mobile rivers thence running down the River Tensaw on the east side thereof, the distance of one mile, thence running back so far as to include six hundred and forty acres."'

It is conceded that this conveyance did not operate to convey any particular land on account of the uncertainty of its description, but it is insisted that it was admissible upon the theory that the deed operated as an assignment of an alleged inchoate right which the heirs of Louis Duret had acquired to demand from the government a patent covering the land here sued for, by virtue of a report of the register and receiver of the General Land Office of July 11, 1820, appearing in the American state papers. The report is upon a blank for that purpose, and in so far as it concerns the question here is as follows:

-------------------------------------------------------------------------------

"No. By Whom Original Quantity Where Situated Inhabitation

Claimed Claimant Claimed Cultivation.

-------------------------------------------------------------------------------

2 Reps. of John B. Te unknown Opposite Tensaw From 1791

and

Louis Duret de Lusser Mobile rivers How long continued

unknown.

3 Reps. of Louis unknown Junction of Under British &

Duret Mobile

Louis Duret & Tensaw rivers Spanish Govs. and

until year 1791."

In a column headed "Remarks by Register," there appears opposite to the entries with respect to all of the claims there dealt with the following:

"Though the orginal grants upon which the preceding claims are founded have been lost, yet it is conceived that the claims to such land as have been inhabited and cultivated under the Spanish government, or which was inhabited and cultivated under the British government by the person having the legal title therein at the date of the treaty of September 3, 1783, between Great Britain and Spain, or which was sold and conveyed according to the provisions of the treaty, should be confirmed for quantity equal to that allowed settlers."

The defendant also introduced, over the objection of plaintiff, a certified copy from the General Land Office of Washington, D. C., of a plat or map of all that part of township 1 north, range 1 east, lying east of Mobile river. This map contains a certificate by the Surveyor General, as follows:

"The above map of township 1 north, range 1 east, is a true copy of the original on file in this office, which has been examined and approved, representing the private claims and their connections with the public surveys as finally settled by the register and receiver of the land office of St. Stephens, Ala., acting as commissioners for the settlement of private land claims under authority of the Act of Congress approved 1822, the 8th of May. The Surveyor's Office, Florence, Alabama, 19th May, 1845. Examined and approved, James H. Weakley, Surveyor General, of the Public Lands in Alabama."

The defendant also offered in evidence a deed by one Seawell to John Cooper and Christian Becker, dated January 26, 1870, purporting to convey the land in question, and a like deed of the same date from Frank David to said Cooper and Becker. Also, proceedings showing a partition of the land owned jointly by said Cooper and Becker; a certified copy of the last will of said Christian Becker, the decree of the probate court bearing date January 30, 1906; said will devising all the property of the testatrix to Fannie I. Becker, one of the defendants in this cause. Defendants also introduced a number of witnesses who testified to actual possession and occupancy by the defendants of the land in question from the year 1876 to the date of trial.

The map offered in evidence showing a survey of the lands in that section, which included that here in controversy, it is insisted should be considered in connection with the provisions of the Act of May 8, 1822 (3 U.S. Stat. 707), and with particular reference to section 3 thereof. This section reads as follows:

"Sec. 3. And be it further enacted, that every person, or his or her legal representative, whose claim is comprised in the lists or registers of claims reported by the registers and receivers, and the persons embraced in the lists of actual settlers, or their legal representatives, not having written evidence of claim reported as aforesaid, shall, when it appears by the said reports, or by the said lists, that the land claimed or settled on had been actually inhabited or cultivated by such person or persons in whose right he claims, on or before the fifteenth day of April, one thousand eight hundred and thirteen, be entitled to a grant for the land so claimed or settled on as a donation: Provided, That not more than one tract shall be thus granted to any one person, and the same shall not contain more than six hundred and forty acres; and that no lands shall be thus granted which are claimed or recognized by the preceding sections of this act, or by virtue of a confirmation under an act, entitled 'An act for adjusting the claims to land, and establishing land offices, in the districts east of the Island of New Orleans,' approved on the third day of March, eighteen hundred and nineteen: And provided, also, that no claim shall be confirmed where the quantity was not ascertained, and report made thereon by the registers and receivers, prior to the twenty-fifth day of July, one thousand eight hundred and twenty."

The succeeding section provides for the survey, giving authority to the register and receiver of the respective districts to direct the manner in which all lands claimed by virtue of the preceding section shall be located and surveyed, and in case of conflict gives them the authority to decide between the parties. It is to be noted that the act in question was to make provision for a grant of land actually inhabited or cultivated on or before April 15, 1813; and that the report offered in evidence discloses that the quantity claimed was unknown, and with no more definite description than that it was opposite the Tensaw and Mobile rivers, and that the length of occupancy or cultivation was also unknown. It is also to be noted that the conveyance by the heirs of Louis Duret to Smith and Coke, relied upon by defendant, was a warranty deed, in usual form, purporting to "grant bargain, sell, convey and confirm unto the said parties of the second part, and to their heirs and assigns forever, a certain tract or parcel of land, lying, being and situate in the county of Baldwin, and described as follows, to wit:" Here follows the description previously set out. This conveyance describes not only one tract of land of 640 acres, but likewise another. The explanation of this, offered by counsel for defendant, is that claim No. 2, as shown in the report, was by the representatives of Louis Duret, and...