Warrior River Coal & Land Co. v. Alabama State Land Co.

• Decision Date: 27 November 1907
• Citation: 154 Ala. 135,45 So. 53
• Parties: WARRIOR RIVER COAL & LAND CO. v. ALABAMA STATE LAND CO.
• Court: Alabama Supreme Court

45 So. 53

154 Ala. 135

WARRIOR RIVER COAL & LAND CO. v. ALABAMA STATE LAND CO.

Supreme Court of Alabama

November 27, 1907

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Alabama State Land Company against the Warrior River Coal & Land Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry Upson Sims and Geo. P. Bondurant, for appellant.

Smith &amp Smith, for appellee.

McCLELLAN J.

It was admitted on the trial that the lands in suit were of those granted by the United States to the state of Alabama, in trust, in aid of the construction of railroads in this state. A general history of congressional and legislative enactments in respect of these granted lands has been repeatedly set forth in the reported decisions of this court beginning with the case of Swann & Billups v Lindsey, 70 Ala. 507. So we see no occasion to state it anew. It will suffice to pass upon, without enumerating all of them, the points taken by appellants in this case against the validity of the record title shown by the appellee as it is traced from the United States, through the state of Alabama and Swann & Billups as trustees, to the appellee, Alabama State Land Company.

By the act of Congress approved April 10, 1869 (16 Stat. 45, c. 24), renewing the grant made by the act approved June 3, 1856 (11 Stat. 17, c. 41), it was "provided that the lands granted by the act hereby revived, except mineral lands, shall be sold to actual settlers only in quantities not greater than one-quarter section to any one purchaser, and for a price not exceeding two dollars and fifty cents per acre." The legal title to the granted lands having vested in the state, and the beneficial interest in the railroad company having become individualized as to the land and the companies, respectively, the land here in controversy included, by the performance of all conditions precedent erected by the national grant, the limitation quoted from the act was, at most, a condition subsequent, a violation of which rendered the estate in the particular instance amenable to forfeiture by the appropriate action of the granting government, and by that only. Sullivan v. Van Kirk Land Co., 124 Ala. 225, 231, 26 So. 925; 26 Ency. of Law (2d Ed.) pp. 436, 437, and notes thereon collating the authorities. This record, of course, shows no such action on the part of the United States. Certainly it will not be presumed, however conclusively a breach of the quoted condition was shown. Hence the objection urged as upon a violation of the stated condition subsequent is untenable.

The valid investiture of Swann & Billups as trustees with the legal title to those granted lands not otherwise or theretofore disposed of has been, either directly or indirectly, announced by this court in the following cases: Ware's Case, 79 Ala. 330; Standifer's Case, 78 Ala. 88; Gaston's Case, 87 Ala. 569, 6 So. 386; Miller's Case, 82 Ala. 530, 1 So. 65; s. c. 89 Ala. 631, 7 So. 771; Galloway v. Henderson, 136 Ala. 322, 323, 34 So. 957. No satisfactory reason for a departure from the conclusion declared in the cited authorities has been presented on this appeal; and it may be suggested--decision of it not being here required--that after the lapse of so many years and the fact that many persons have invested their substance and erected their homes on these granted lands in reliance upon the validity of the title of Swann & Billups as trustees, the doctrine of repose should be applied to put an end to further litigation in respect of the title held by these trustees.

The action is common-law ejectment, and several demises are laid in the declaration; but to only one, that from the Alabama State Land Company, does the testimony adduced relate. The assignments of error made are all too indefinite to command a review of the matter complained of, except that predicated upon the giving of the affirmative charge for plaintiff. This assignment seems to raise in substance the question to which counsel have given attention in brief and argument. The deed, purporting to be from the trustees, conveying the lands in suit, among others, to the Alabama State Land Company, was introduced in evidence, and, of course, constitutes an important link in the title involved. Against the validity of this conveyance appellants insist that it was and is only the individual act of Swann & Billups, rather than that of the trustees, as such. The instrument purports to have been executed, viewing only the signatures thereto, by John Swann and John A. Billups; and the acknowledgment, while in the usual form, does not set out the character in which the paper was signed by them. By the elaborate recitals set forth in the instrument the history of legislation by the state of Alabama in reference to the lands involved in the "Debt Settlement Act," approved February 23, 1876 (Acts 1875-76, p. 130), and their conveyance to the trustees selected as therein provided, and the official performance of the direction to the Governor of Alabama to convey such lands to the trustees so selected, together with a full enumeration of the powers and duties, and legislation thereon, fixed by the act and carried forward in the Governor's deed, is clearly, and we think with perfect accuracy, shown. The granting clause is unmistakable in its intent to convey the right, title, and interest of the trustees, as such, in the lands described. But, as if to put the matter beyond all possibility of cavil, whatever else was shown, in respect of the intended character in which the grantors were acting and the quantity and source of right, title, or interest conveyed, it was finally provided as follows: "Provided, always, and it is hereby declared, that no personal warranty of title shall be construed to exist by or under these presents, but the same shall operate and take effect only as a conveyance of all estate and interest vested in the said John A. Billups and John Swann as such trustees as aforesaid, free from any incumbrance created by them or either of them."

We think it may be justly presumed that the signers of the instrument were in fact the trustees. Kent v Mansel, 101 Ala. 334, 14 So. 489. There is no denial of it anywhere in the record. If so, then the inquiry is: Was further description of the character in which they affixed their signatures to the instrument essential to a valid conveyance by them as trustees of the real estate described? We do not think so. Either the conveyance must be taken as by them as trustees or as individuals. The latter construction cannot prevail, since thereby violence would be done to the express provisions of the instrument. So the inquiry reduces itself to this: Is a conveyance by a trustee, or one like circumstanced, void unless the signature of the purported grantor is attended with terms descriptive of the character in which he undertakes to convey? It seems to us that the only practicable, and at the same time just, rule to observe in such cases is to look to the entire instrument for the intention thereby shown. 13 Cyc. pp. 621, 622, and authorities cited in notes; Kingsbury v. Wild, 3 N. H. 30. And, if shown, its invalidity could not result. The question is...