DODGE
'I).
BRIGGS.
169
reason that the complainant has an adequate remedy at law, the suH being in the nature of an action in ejectment. I think the equitable jurisdiction is clearly maintainable. This is not a bill to recover possession of lands, as in an action of ejectment, but it is to prevent fraudulent interference and irreparable injury to the lands and title of the complainant. 'fhe authorities relied on by respondents' counsel not applicable. In the case of Hipp v. Ba,bin, 19 How. 271, the title was merely legal. There was no multiplicity of suits; no other special ground of equity jurisdiction; and no particular reason why the court should maintain it. The case in 15 Wall. was to enjoin a suit on a bond on the allegation that the bond was issued without authority. This would have been a complete defense at law. The case in 23 Wall. 466, (Lewis v. Cocks,) would expreSSly justify intervention by equity, where the fraud of the agents or their tives is so glaring as in this case, it being inconteBtably true that Colby, Chase, and Crocker bought the lands for the citizens of Mainej who were the incorporators of the Georgia Land & Lumber Company; and paid for it with the money of the company, whatever may be the apparent validity of the title they or their heirs, or those holding and claiming under them, may have. To declare and enforce this tmst is within the power of a court of eqnity. Story, Eq. Jur. 120. Besides, the complainant may appeal to that court to remove a cloud from his title, and to prevent a multiplicity of suits, and the great expense and inconvenience of the litigation necessitated by the multitude of defendants claiming under the same title. Oelrichs v. Spain, 15 Wall. 211; Chastian v. Smith, 30 Ga. 96; McKinney v. Burns, 31 Ga. 295; Scott v. Taylor, 64 Ga. 508; Poulet v. Johnson, 25 Ga. 403; Stm'k v. Starr, 94 U. S. 477, 485-492. It is further insisted that complainant must recover on the strength of his own title, and not on the weakness of the title of the respondents. While this is true, it is also .true that if the respondents, or the persons under whom they claim, have been guilty of such fraud as would defeat the complainant on his legal title, he may, in a court of equity, on abill filed against respondents, by suitable· proof, supply such defect in his legal title as their fraud has created. His equitable right, with such satisfactory proof of their fraud, then becomes, in contemplation of the court of equity, the legal title. A conveyance is claimed from Butler, who is the fraudulent reservoir of all the alleged titles flowing from the use which Briggs, Hall & Sleeper have made of the imperfect execution of their trust by Colby, Chase, and Crocker. The admissions of Colby,' Chase, and Crocker, and the clear proof of their agency, constitute a sufficient link in the chain of complainant's title, and, in the breast of a court of conscience, this evidence adequately and amply supplies the fects in the written title which are sought to be utilized for the fraudulent purposes of Briggs, Hall & Sleeper, and their confederates. It is also insisted that the deed to Colby, Chase, and (;rocker is
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FEDERAL REPORTER.
not admissible, because it was not properly registered,·and Beverly v. McBride, 9 Ga. 443, is cited in support of this objection. Now, the deed in the case before "the court is more than 30 years of age, and in the authorities cited the chief justice, in deliverinR the opinion of the court, uses this language: "Had this instrument been thirty years old. and testimony adduced that it had been acted upon. or that the obligee took possession of the premises in dispute under it, no proof of its execution would have been required."
In Hearn v. Smith, 59 Ga. 704, also cited, the deed was not 30 years old. In submitting proof of complainant's title the fact was developed that the state of Indiana once owned all of these lands. It was stated in the argument that the Georgia Lumber Company had borr{)wed money from the old Bank of the United States, and gave the bank a mortgage on these Georgia lands as security for the debt. In the distribution of the assets of the bank on its dissolution, the state of Indiana became the owner of the mortgage, and the Georgia Lumber Company, by deed to that state, discharged the debt, and conveyed to it the title. Whether this account be historically true or not, it matters not. The fact is evident that a was made of the lands in dispute from the Georgia Lumber Oompany to the state of Indiana. This conveyance is attacked by respondents on two grounds-First, that the deed was not properly executed and proven; sllcond, that the state of Indiana is inhibited from holding lands in the state of Georgia. The technical ground of objection is that the deed had but one witness. He was, however, a commissioner of deeds for the state of Georgia, residing in the state of Indiana. l'he original deed having been lost, was not offered, but a copy taken from the record, and it was insistad that, there being but one witness, the deed could not be admitted to record. It was an ancient record, and it is true that an ancient record, like an ancient deed, is admitted in evidence without proof. After the lapse of 30 years the law presumes that the official-who made the record is dead, and that he cannot be summoned to explain the circumstances under which he made it, and it presumes that everything was done which ought to have been done. H the paper appears to be formally a deed, admitted to record on the attestation of one witness, where two witnesses were required by law, after the lapse of 30 years it will be presumed that there were two witnesses, and that the clerk omitted one. This rule of evidence is enforced ex rei. As in other rules of evidence it is made to further the ascertainment of truth. In this case there is a strong presumption that the deed was never fabricated, and that it was acted upon. It was made to a great state. There is nothing suspicious about it. "An ancient deed, by which is meant one which is more than 30 years old, having nothing suspicious about It, is presumed to be genuine without express proof, the witn(lss
DODGE fl. BRIGGS.
171
being presumeli dead; and if it is found in the proper custody, and is corroborated by ancient or modern corresponding enjoyment, or by other equivalent or explanatory proof, it is to be presumed that the deed constituted part of the actual transfer of the property therein mentioned; because this is the usual and ordinary course of such transactions among men. 'l'he residue of the transaction may be as unerringly inferred from the existence of genuine ancient documents as the remainder of a statue may be made out from an existing torso, or a pei'fect skeleton from the fossil remains of a part." 1 Greenl. Ev. 144; Webb v. Wilcher, 33 Ga. 565; Adams v. Roberts, 2 How. 496; Patterson v. Winn, 5 Pet. 233; Winn v. Patterso"n, 9· Pet. 663. The two decisions last cited are pronounced by Mr. Justice STORY, and are cases from this circuit. The deed is corroborated by a resolution of the legislature of Indiana, authorizing the sale of this property by a deed of the governor of Indiana conveying the same. The deed, therefore, constituted part of the actual transfer of the property therein mentioned. It is said, however, that the state of Indiana cannot own lands in Georgia. The right of a state to hold lands in another state has never been expressly decided. It has been held that the government of the United States cannot accept a legacy to lands in a state, and that such legacy is void. U. S. v. Fox, 94 U. S. 315. It is said, and with great show of reason, that it is abnormal, and contrary to public policy, that a state should be permitted to hold lands in another state; and it is also said that a state can own nothing that is netlessary to its existence, and the proper conduct of its affairs. With regard to the last ground of objection, it can be replied that a state has many of the powers of a private corporation, and I do not see why a state may not buy lands as well as bonds. Most unquestionably is it true that the state of Indiana could not hold lands in the state of Georgia if the state of Georgia objected to it. Our fathers, however, were competent to deal with this question. Their . ideas of state sovereignty were even more pronounced than those which now obtain. It is not disclosed by the record that they objected to this effort on the part of a sister state to save what, presumably, was a bad debt. A transaction so enormous as this could not have escaped their attention, and it is scarcely appropriate, I think, in the absence of any action by the state, for Messrs. Briggs, Hall & Sleeper, at this late date, to bring forward the question of its offended sovereignty, especially as it appears that their patriotism, not altogether disinterested in itself, would result in robbing the citizen of another state. An alien may hold lands in Georgia, and while the comity which exists between the states of our Union will not, in my judgment, legal. ize the purchase and possession of lands by one state in another state, as a general proposition, still it will permit a state of the Union to authorize or tacitly sanction such a transfer of the title to lands
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in its territory to a sister state as will prevent the latter from loss. In order to vitiate the title of the state of Indiana, some proceeding in the nature of "Office found" must have been adopted. It must be understood also that when the state of Indiana bought these lands it came as a subject, and not as a sovereign. It is to be presumed that the state of Indiana got the lands for a legitimate purpose. It is to be further presumed that the state of Georgia would have objected had it seen proper to enforce its political and exclusive rights. If the state of Indiana is to be regarded as an alien, it is laid down in Washburne on Real Property, 74, an alien may purchase and hold lands against all the world except the state; and Briggs. Hall & Sleeper may not say, with Louis XIV., "I am the state." The title is conveyed from the state of Indiana to Martin R. Green. The deed is signed by the governor, on the authority of a resolution of the legislature of that state; and from Green the chain of title to the complainant is regular and unobjectionable. It is insisted that the deed to George E. Dodge is obnoxious to the act of the legislature of Georgia of 1877 forbidding foreign corporations to hold over 5,000 acres of land in the state. But the deed to Dodge was made before the passage of the act. Besides, this is a question for the state, and it is competent to take care of its own interests. Nobody but the state can raise the question. 3 Washb. Eeal Prop. 267. A limited number of the respondents claim title from a different source than Colby, Chaso, and Crocker. With regard to these the court can pass no decree. If there be controversy with these parties it can be settled in appropriate proceeding elsewhere. As against Briggs, Hall & Sleeper; all the heirs of Colby, Chase, and Crocker; against Silas P. Butler, and those who hold under them,-tbe title of complainant as to these lands is valid, and must be protected, and the prayers of the bill are granted. Let the decl'ee be framed accordingly. No damages have been proven.
SCHEURER V. COLUMBIA-STREET BRIDGE
Co.
(Cir:euit Court, D. Oregon. WATERS AND WATER-COURSES THE STATE OVER.
April 19,1886.) POWER OF
NAVIGABLE WATERS IN OREGON -
Under the ruling in Gal'dwell v. Bridge Co., 113 U. S. 205, S. C. 5,Sup. \.Jt. Hep. 423, the provision in the act of congress of February 14,1859, (11 St. 383,) admitting Oregon into the Union, which declares that "the navigable waters of said state shall be common highways. and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll ther.,for, " docs not prevent the state from authorizing the erection of a bridge across the Wallamet river, at Portland, however much it may impede and obstruc:t the navigation thereof, nor !,las the Pnited SUites circuit court any jurisdiction of a r,uit to enjoin the same.