SHEPARD tl. NORTHWESTERN LIFE INS. CO.
evidence in this case,) conveyed no estate, either legal or equitable, because the state could not convey lands in advance of their being earned; that the Amboy Company had no right to sell any of the land not carned, on the line of its road, included in the grant, subject to the right of forfeiture. It did not possess any such right, for the reason that no such right is conferred by the act of congress, nor is it within the spirit and intent of such act. (4) That Maxwell and his associates had no rights, as against the Jackson Company, based upon its having completed the road, and earned the lands. (5) That it was not necessary to decide whether there was a forfeiture of the grant declared or acted upon by the legislature or not, though he inclined to think there was not. (6) That the right of the Amboy Company to earn the land was not transferable, but might be voluntarily surrendered, and that the effect of the assignment, by the permission of the legislature, was a surrender of its right to the state, and the legislature vested this right in the plainant. (7) That the title of the complainant to the lands as earned, was not derived from the assignment, but from the act of the legislature conferring upon the Jackson Company the land grant, subject to the prior conditions of the grant. Another question was decided, not necessary to be noticed here. The opinion upon the rehearing also deals with this latter question, and is also immaterial. The court evidently placed much reliance upon the frequent declarations of the supreme court of the United States in Schulenberg v. Harriman, 21 Wall. 44; and Farnsworth v. Railroad Co., 92 U. S. 49; and Railroad Co. v. Railroad Co., 97 U. S. 491. The calle of Railroad Co. v. McGee, 115 U. S. 469, 6 Sup. Ct. Rep. 123, is not noticed in the opinion, and does not seem to have been called to the attention of the court. In this case, congress, in 1853, passed a similar act, granting .certain lands to the states of Arkansas and Missouri to aid in the building of a railroad from the Mississippi, by way of Little Rock, to the Texas boundary line. The Cairo & Fulton Railroad, of Missouri, was incorporated under the laws of the state, and· in 1855 the legislature passed an. act vesting in that company full and complete title to the lands granted to the state by the act of 1853, and provided that the company might sell the land in the manner proVided for in the act of congress, and issue bonds. On January 3, 1859, the company sold and conveyed the lands sued for to McGee, who immediately went into possession, and continued to occupy and improve them, paying taxes and assessments thereon. The de 'd was duly recorded, but the land was more than 40 miles from the starting point of the road on the Mississippi, and it did not appear that when it was sold a sufficient number of miles of road had been built to authorize its sale. In February, 1866, the legislature directed the governor of the state to sell- the road at auction, so far as the same was constructed or .projected, with all its property, and all ,rights and franchises belongv.40F.no.7 -23
ingtdit, to satisfy a Heil in favorofthestate.InJuly, 18M,'congress revived and extended the grant for the' term Of 10 years from the passage of the act, with a provision that all the lands should be patented to the8t3te whenever the road should be completed. After the passage of act, the railroad property was sold; alid' I!:onveyed by the state tocertain:persons, under whom the St. L6uisRailway Company, complain- ' ant, claimed title. '1'he road was completed by the purchasers, and the, landsin dispute were patented to thecolIlplainant. The court decided"(1) That the lands granted to aid ill the construction of railroads do not revert, after condition broken, until a forfeiture has been asserted by the United States, either by judicial proceedings orJegislative action. (2) That Mauch intention appeared ill this case, but, upon the contrary, the evident purpose of congress was to waive the forfeiture, and extebd the time for earning the lands under the original act. , (3) That there was no and that the title ofthe defendants stood precisely as it would if the original company had completed its road withiri the time fixed by the act of 1853. The purchasers at the sale made by the state in 1866 took subject to the lights of the St. Louis. Company, and got no better title th!l.n they had themselves. 3,"1866; contained provisions for forfeiture which - But the act did not appear in the 'act considered by the court in the McGee Case.' After extending the time for the completion of the road for seven years, ' itprovided that the 'Amboy Company should forfeit all right to s!l.idgrant, or any part thereof, if it should fail to perform any of the following con- ' ditions: : (1) To cleat, grub, and grade 20 niiles between Owosso and Saginaw , city, so that the same should be in readiness for the ties and iron by ruary 1, 1867. , '" ' " · (2) To complete said road from Owosso to Saginaw city, so that the same should be in readiness for.the running of trains by' NOvember I, 1867. (3) To fully complete,in like mariner, 20 miles of road in each and; every year after said November 1, 1867, and to fully complete the enby the time limited by the aet. ' i ;. There W!l.S a further proviso that, incase of the failure of the Amboy' Cotnlpllhy to perfol'm, any ofthese conditions, the legislature of the st!l.te' Ihight, at its first sessiotia,fter such failure', confer the grant upon some' otller'corporation, upon such terms and conditions as it should see fit, t6' canoy otitthe purposes of the act of J\1ne,1856, and, when so conferred, sUch corporation should he entitled to enjoy all ofthe grant not then law": ftilly-disposed of,as if the same been originally conferred upon sudh l corporation. "But in case the said legislature shall; in such case, failto coIiferSaid grant,' then the.said lands shall revert to the United states. »J "The purpose of the second proviso seems to have been to authorize legiSlature to declare forfeiture hnp08ed by the first proviso, by confernng the grant upon Some' other road ,with the, right to enjoy all, that nj}t bee111awfully' disposed of. "The. Amboy. Company did make default.' It did not grade 20 miles of'road between Owosso and Saginaw, or anyl
pu;tof'it, by:l!:eJ>rqa;ry 'Thereupo,n the legislature !\Ct,' ,7 t1867f, conferring JIpon the Jaek80n Compauy all the rights' alld fran(Jhisesgranted by'the act of 1856 j 'l1nd theretofore, belonging t6 tQ6 Ampoy His tr\le that the title indicates that the object of the act wRs't(),c9pfirm .the title of the Jackson COlnplJ,ny ,to the prope;r.ty,and franchises acquixe<;lby it of the Amboy Compapy under the act of 1865, authorizing the Jackson Company to enter intQan arrltngement, '\Tith the Amboy Company. 'rhis act authorized the two companies' to epter ltlll1rrangement for the location of the Jackson road upon the' line of the Amboy road,from Lansing, by OW0I3S0, to Saginaw, and vided that the Jackson Company should be entitled to the land grant, and that the right of the Amboy Company to such land, so far as the portion of its road from Owosso to Saginaw is concerned, should cease upon the filing of a copy of said agreement in the office of secretary of state. This act was in force when congrlls6 pas,sed the act of 1866, authorizing a forfeiture of the rights of the Aniboy Company upon a failure to do certain it was passed in view of what had been specified ,work. done by the legislature the previous year. It seems to us to follow from this legislatitlIl that congress intended to forfeit the rights of the Am bOy Company by empowering the legislature to confer them upon the Jackson Company. The fact that this was an amicable proceeding, as between the two companies, as appears from their agreement of October 26, 1866, does not affect the construction to be given to the act of 1866, which seems to us to contemplate a forfeiture, to be carried into effect by the legislature. But, even if a forfeiture 'were· not contemplated, the supreme court of the state, in the C/lSe of Railroad Co. v. Davison, 32 N. W. Rep. 726, constrl:ied the legislation of 1865 and 1867, and the agreement of October 26'; 1866, as a; surrender by the. Amboy Company to the state of all its or conferring of such rights upon the Jackson rights, and the Company, subject to the performance of the conditions of the grant;' and in this opinion, even if it be not absolutely binding upon us as a question of statutory construction, we are disposed to concur. A different conclusion might work great hardship to the Jacks9n CompBDy.Maxwell,·Campbell, apd Van Etten did not take possession of theJand deed, and it remained unoccupied up to the time theJackson Company received its conveyance from the Amboy Company. l'he testimony shows that it had no actual notice of the deed to Maxwell, eitl;1er at the. time it entered into the contract, or when the grant was conferred upon it, or at the time it received its deed; and the recording: of that deed was not constructive notice, since the Amboy Company had then no legal title tocollvey. In its search. for illcumbrances upon ·the r:ind, the Jack,son Conlpany was under tio obligation to look for c9nvey. aJiqes by persons who did not hold the legal title. Trust Co. v.Maltby, v. Mich. 274. partiCUlar materIally of McGee, who"ns It appeafl3"bythe the case report. immediately went into' p6ssession, and had ever since occupied and improved it as his own, and paid.the U\.Xes assessment,s ·
The,opinion, both of the supreme court of and that of the United Stares, seems to have rested la.rge1y upon this ground. If, under these cirouD1$tI1nces, the Jackson Company is to lose the benefit of these lands, then it would follow that the Amboy Company might, with equal propriety and.1egality, have conveyed the whole quantity of land granted, and left none, in case of failure to construct more, to be conferred upon another company. Upon the whole, while the faets of this case are very complicated, and the questions arising upon them are by no means free from difficulty, our opinion is that 'plaintiffs are entitled to judgment.
LERMA .,. STEVENSON.
(Cfreu(t Court, W. D. Texas, Et Paso D£1MIon, October T, 1889.)
Though Canst. Tex. 1876, art. 13, § 4, forbids that any olaim of title to land whioh issued prior to November,.1835, be deposited in the general land-office, or reoorded or used as evidence, a Mexican grant deposited in the land-office subsequent to 1876, is admissible in evidence, if conceded to be valid, as to nullify it would be to impair the obligation of a contract, and also to infringe the treaty of Guadalupe Hidalgo. The fact that a person or his ancestor had oattle wandering over a grant of land 50 leagues in extent affords no presumption that he owned or claimed the land. Under Rev. St. Tex. art. 3930, prOViding that when the terms and conditions of pre-emption shall have been complied with, and the pre-emptor shall have paid the price of the land, etc., the commissioner shall issue a patent to. the pre-emptor, one who has1iled hiS.I.oostiO.n for pre-emption, but has not received a patent, has an equitable claim to the land, which cannot prevail in an action at law in the eral court against a legal titie asserted by another.
NOTICE OF OCCUPANCY.
EJElJTMENT-Lli:GAL AND EQUIT,ulLE TITLES.
'Constituents of plaintiff's title omitted.
session of Jose Lerma during his1ife, and since his death in the posses-sion of the said plaintiff, Felix Lerma; and that the confirmation of the grant to Jose Lerma and the protocol are among the archives of Paso del Norte, Mexico, and have been since the year 1828, as well as the protocol since 1823, or evidence of said grant, as provided under the Span.. ish and Mexican law. (3) That the land contained in the grant to said Jose Lerma was within the jurisdiction of Paso del Norte, and .in the territory ceded by Mexico to the United States in the year 1848 by the treaty of Guadalupe Hidalgo. (4) That the plaintiff's title was proven up and filed for record in the clerk's office of El Paso county, Tex., in which the grant of land October 4, and recordec1 on October 9, 1887. (5) That the survey of the lines of the grant, as per survey on file, is correct. That the "Sierra Blanca," "Eagle Peak," and "Hot Springs" are natural calls, also stone monuments; these three natural calls being corners, and known notoriously as such corners. That the beginning corner On the Rio Grande (formerly Rio Bravo del Norte) is opposite to Ojo del Toros (Bull Springs) and Sierra de los Todos Santos, natural points and places well known, the beginning corner being opposite thereto. (6) That Jose Lerma cultivated a part of the grant ante. rior to the execution thereof, and used the land for his cattle, horses, sheep, and goats, and that his possession was continuous until 1847 , at the time General Donophan's command from Missouri passed into Mexico at Paso del Norte, when Jose Lerma moved into the now state of Chihuahua, and remained, the land being vacant until 1849 or 1850. That in one of these years the plaintiff put tenants on the same, and used the land for pasturage for his stock. That when the United States troops abandoned Ft. Quitman, in 1861, he again ·left the land, but left stock on it. That since the abandonment of the United ·States troops, in 1861, .the Indians were hostile, and constantly at war with the settlers, and until within the last four or five years. (7) That Jose Lerma. died in 1852, and that Felix Lerma is his sole heir at law, and the plaintiff herein, and that he resides in and is a citizen of Mexico. That the defendant filed his location for pre-emption on the 15th day of December, A. D. 1887, and has possesl'ion of the same. That he has complied with the laws regulating pre-emptions in this state toper-feet title thereto,and that his claim is embraced within the boundaries of the grant to Jose Lerma." It is proper hereulso to state that tbeoriginal grant to plaintiff's ancestor, Jose Lerma, said to contain 50 leagues of land, was conceded by counsel for defendant, on the ment, to bea valid grant as originally extended by the Mexican authorities.
OONCLUSIONS OF LAW.