[Swann & Billups v. Larmore.] HAMILL & DICKINSON, contra. BRICKELL, C. J.-In Wilson v. Collins (9 Ala. 127), it was held that the statute, declaring a judgment by confession a release of errors (Clay's Digest, 321, 51), applied to the judgments of justices of the peace, as well as to the judgments of courts of record. The statute, with this known construetion, has been re-enacted in the subsequent revisions and codifications of the statutes, and now forms section 3945 of the Code of 1876. It was further held, in that case, that if the judgment was confessed by fraud or mistake, relief from it could only be obtained in equity. This decision is conclusive of the questions presented by the record, and the judgment must be affirmed. 1. Swann & Billups v. Larmore. Ejectment for Lands claimed under Railroad Grant. Grant of lands in aid of railroads, by act of Congress of June 3d, 1856; what title passed thereby.-Under the provisions of the act of Congress approved June 3d, 1856, “granting public lands in alternate sections to the State of Alabama, to aid in the construction of certain railroads" (11 U. S. Statutes at large, p. 17), and the subsequent act approved April 10th, 1869, renewing said grant, a present title to the lands passed to the State, subject to be devested, by proper action taken, for breach of the condition subsequent annexed to the grant; though this title did not attach to any specific sections of land, until the route of the particular railroad, to aid in the construction of which the grant was made, was definitely located within the time limited by said acts of Congress. 2. Same; power of sale.-Under said acts of Congress, the State held the lands so granted in trust for the purposes specified, and had absolute power to sell one hundred and twenty sections, within a continuous length of twenty miles of the particular railroad, before any work was done on the road; and this power of sale it might lawfully assign or transfer to the railroad corporation itself. 3. Same; legislative joint resolutions of 1857-8, transferring said lands to railroad company, and subsequent sale by company.-By joint resolutions of the General Assembly, approved January 30th, 1858, it was declared, "that so much of said lands, interest, rights, powers and privileges, as are or may be granted and conferred, in pursuance of the said act of Congress, to aid in the construction of a railroad from Gadsden to connect with the Georgia and Tennessee line of railroads, through Chattooga, Wills, and Lookout valleys, are hereby disposed of, granted to, and conferred upon the Wills Valley Railroad Company, to be used and applied by said company upon the terms, conditions, and under the restrictions in said act of Congress contained." In 1861, said railroad company sold the lands here sued for, which are within six miles of the 70 555 124 232 [Swann & Billups v. Larmore.] railroad, and within twenty miles of the point where it crosses the boundary line of Georgia, but more than twenty miles from Gadsden, and more than twenty miles from Wauhatchie in Tennessee, where work on the road was commenced, five miles from Chattanooga, where the Georgia and Tennessee railroads meet and intersect; and the purchasemoney paid was used by the company in the construction of the road. Held, that the sale was authorized by the said acts of Congress and joint resolutions of the General Assembly; and there being no proof of any other sale having been made by the company, that the court would not presume that the absolute power of sale had been previously exhausted. APPEAL from the Circuit Court of DeKalb. This action of ejectment was brought to recover certain lands particularly described, which constituted parts of sections twenty-five (25) and thirty-five (35), in township four (4), range ten (10) east; and was commenced on the 2d September, 1878. The declaration contained a count on a demise from the State of Alabama, on the 10th April, 1872; and a count on a demise from John Swann and John A. Billups, as trustees appointed under the provisions of the "Debt Settlement Act" approved February 23d, 1876, made on the 10th April, 1877. Vance C. Larmore, the real defendant, appeared, entered into the usual consent rule, and pleaded the general issue; and the cause was tried on issue joined on this plea. On the trial, as the bill of exceptions states, "the following facts were agreed on and admitted by the parties:" "1. That the lands here sued for formed part of the lands granted and conveyed to the State of Alabama by the act of Congress approved June 3d, 1856, entitled 'An act granting public lands in alternate sections to the State of Alabama, to aid in the construction of certain railroads in said State'; and formed a part of those embraced in and governed by said act, and also by the act approved April 10th, 1869, entitled 'An act to renew certain grants of land to the State of Alabama,' unless the title and claim under the defendant's purchase and deed, hereinafter set out, took said lands out of the operation of said act of Congress last named; and that said lands are part of the lands embraced by the joint resolutions of the General Assembly of Alabama, approved on 30th January, 1858, entitled," &c., "as found in the Session Acts 1857-8, p. 430." "2. That the said lands sued for form part of the lands embraced and conveyed in and by the mortgage which was executed by the Alabama and Chattanooga Railroad Company to the State of Alabama, on the 2d March, 1870, under and in pursuance of the act of the General Assembly approved February 11th, 1870, entitled 'An act to loan the credit of the State of Alabama to the Alabama and Chattanooga Railroad Company, for the purpose of expediting the construction of [Swann & Billups v. Larmore.] the railroad of said company within the State of Alabama'; which mortgage was duly recorded," and is here set out in the bill of exceptions. "3. That the State of Alabama, by Geo. S. Houston as governor, on the 8th February, 1877, conveyed the lands here sued for, and all other lands embraced by said mortgage, to the said John Swann and John A. Billups as trustees, under and in pursuance of the provisions of the act of the General Assembly of Alabama, approved February 23d, 1876," being the act known as the "Debt Settlement Act;" which conveyance is here set out in the bill of exceptions. 4. That the Wills Valley Railroad Company was chartered by an act of the General Assembly of Alabama approved February 3d, 1852, and its charter was afterwards amended and enlarged at various times," as shown by the published statutes here referred to; "and that said railroad company, under and in pursuance of acts of the General Assembly passed in 1868, became the purchaser of all the rights, property and franchises of the North-East and South-West Alabama Railroad Company, and immediately thereafter (and in 1868) became a corporation then and ever since known as the Alabama and Chattanooga Railroad Company, and clothed and invested with all the rights, property and franchises of the Wills Valley Railroad Company and of the North-East and South-West Alabama Railroad Company. 5. That the Wills Valley Railroad Company organized before the day of October, 1857, went to work, and on the day of December, 1860, their trains were running from Wauhatchie, Tennessee, to Trenton, in Georgia, a distance of thirteen miles; and purchased of the Nashville and Chattanooga Railroad Company the right to use the railroad of said company, and were thus running from Wanhatchie to Chattanooga, a distance of five miles further, on the road of said Nashville and Chattanooga Railroad Company; and that said Wills Valley Railroad Company had also graded their road-bed from Trenton, Georgia, to Collinsville, Alabama, a distance of some forty-five miles in all, and some thirty-five miles within the State of Alabama; that said grading began at Wauhatchie, and progressed south-west, through Georgia, and into Alabama, from that direction; that said road-bed was located and graded, but not completed, all along that portion of the road where the lands here sued for lie, and the entire line and bed of said Wills Valley railroad had been duly located before 1860; and that said lands are embraced in the certificate of the commissioner of the General Land-Office at Washington, received by said railroad company, June 30th, 1860, through the Governor. "6. That no railroad whatever, nor any part of any railroad, [Swann & Billups v. Larmore.] has ever been graded, built or constructed, by any of the abovementioned Alabama corporations, between Wauhatchie and Chattanooga; that Wauhatchie is in Tennessee, five miles south-west from Chattanooga, and on the line of the Wills Valley railroad, which was located prior to 1860; that the only railroad ever constructed between Wauhatchie and Chattanooga is the Nashville and Chattanooga road, the use.of which has been obtained from the owners of that road by the Alabama and Chattanooga Railroad Company, by contracts of short duration, renewed from time to time; that Chattanooga is in Tennessee, and is the place where the Georgia and Tennessee lines of railroad first meet and intersect. 7. That the lands here sued for are situated in DeKalb county, and were in the defendant's possession at the commencement of this suit; that they lie within six miles of the road-bed of said railroad company, and within twenty miles of the boundary line between Georgia and Alabama, where said granted lands lie; that the board of directors of said railroad company met on the-day of December, 1860, and appointed John L. Barnard entry-taker, for the purpose of disposing of the lands sued for; that said lands were advertised for sale in a weekly newspaper published in Chattanooga, and by posting notices at various places in the county for thirty days, and were offered for sale, at Valley-Head in said county, on the 20th February, 1861, and were bought by the defendant at said sale, at the minimum price of $2.50 per acre; that the defendant received his certificate of purchase from the company's entry-taker, and took possession of said lands, and paid the purchase-money soon afterwards, to-wit, on the 5th November, 1861, but, by reason of the unsettled condition of the country, did not receive his deed until June 7th, 1866," which is here set out; "that the purchase-money for said lands was used exclusively in the construction of said road, and was disposed of only as the road progressed; and that the defendant has continued in the possession of said lands to this date, except one or two years after March, 1870, during which one Severance had possession under claim of lease or purchase from the Alabama and Chattanooga Railroad Company. "It is further agreed, also, that the road of the Wills Valley Railroad Company, referred to in its charter, was not completed from Wauhatchie to Attalla, near Hampton's bridge and farm, as its south-western terminus in Alabama, before May, 1871, but was constructed, except the grading above mentioned in Alabama, after March, 1870, but not to Gadsden, and was never constructed to Gadsden, nor nearer to Gadsden than Attalla, which is five miles from Gadsden." The several acts of Congress, acts and joint resolutions of the [Swann & Billups v. Larmore.] General Assembly of Alabama, which, by agreement, were made parts of the bill of exceptions, are set out in full in the report of the case of Swann & Billups v. Lindsey (ante, p. 507), and it is unnecessary to repeat them here. "The foregoing were all the facts in the case, as shown or agreed upon on the trial;" and on these facts, the court charged the jury, on the written request of the defendant, "that upon the issue joined in this case, and upon the facts agreed on by the parties, the defendant is entitled to recover." The plaintiffs excepted to this charge, and they here assign it as error. RICE & WILEY, and L. A. DOBBS, for appellants.-1. Congress has undoubted power to grant public lands, for the purpose of aiding in the construction of railroads, or to accomplish any other purpose deemed beneficial to the public, upon such terms, conditions and restrictions, as may be inserted in the grant.-United States v. Hall, 98 U. S. 351; Schulenberg v. Harriman, 21 Wallace, 59; Farnsworth v. M. & P. Railroad Co., 92 U. S. 65. When such grant is made, the terms, conditions and restrictions therein contained and expressed, are the supreme law by which rights claimed under it are to be determined.-Cases cited. 2. By the terms of the act of Congress of June 3d, 1856, the legal title to the lands involved in this suit was vested in the State of Alabama, as trustee, so soon as the railroad, in aid of which the grant was made, was definitely located.--Schulenberg v. Harriman, 21 Wallace, 44; Farnsworth v. Railroad Co., 92 U. S. 48. This legal title was coupled with a restricted power of sale, but not with any interest in or to the lands. As said by the Supreme Court of the United States, construing a similar grant, "The act of Congress imposed conditions upon alienation, except as to the first one hundred and twenty sections, which the [State] could not disregard. It declared that the lands should be exclusively applied to the construction of the road in aid of which they were granted, and to no other purpose whatever, and should be disposed of only as the work progressed. It provided their sale should be made in parcels, as specified portions of the road were completed, and only in that manner. The evident intention of Congress was, to secure the proceeds of the lands for the work designed, and to prevent any alienation in advance of the construction of the road, with the exception of the first one hundred and twenty sections. It made the construction of portions of the road a condition precedent to a conveyance of any other parcel by the State. No conveyance, in disregard of this condition, could pass any title to the company."-92 U. S. 65; 21 Wallace, 59; Scipio v. Wright, 101 U. S. 665; Hardy v. Br. Bank, 15 Ala. 730. |