Stein v. England

GARDNER, J. The result of this appeal turns upon the question as to whether or not the land sued for was subject to taxation, or title thereto to be acquired by adverse possession prior to the issuance of the patent. The property sued for is in the claim of Anthony Espejo, and was patented to Gertrude Etepejo and others April 30, 1913; a copy of the patent being set out in the transcript, showing that the claim of E'spejo was confirmed by section 3 of an Act of Congress of March 3, 1819, c. 100, 3 U. S. Stat. at Large, p. 528. Plaintiff, appellee here, is one of the heirs oi the patentee; and it is admitted that defendants claim no interest under said patent but in hostility thereto. Section 3 of the above-mentioned act provided for cases where the original settler was entitled to a grant as a donation. Section 12 of the act provided for the issuance of a certificate to the claimant by the register and receiver when, in his opinion, he (claimant) is entitled thereto, under such instructions as may be received from the Commissioner of the General Land Office; said section concluding as follows: “And where it shall appear to the satisfaction of the Commissioner of the General Land Office that the certificate has been fairly obtained according to the true intent and meaning of this act, then and in that ease a patent shall be granted in like manner as for other lands of the United States.” Speaking of this provision of said section 12, this court in Doe ex dem. Mims’ Heirs v. Higgins, 39 Ala. 9, said; “It is impossible to resist the conclusion that, by that provision, the Commissioner of the General Land Office is clothed with the authority, upon the presentation of a patent certificate, to' inquire whether it was fairly obtained according- to the true intent and meaning of the act, and, if he decides that question in the negative, to withhold a patent. Such authority in the Commissioner necessarily includes the power to annul the acts of the subordinate officers, upon which the claim to a patent is predicated; for it would be absurd to say that the claimant, had a perfect title by virtue of acts of subordinate officers, when, because those- acts were wrong, the Commissioner had rightfully refused a patent. Besides, it would be utterly useless to give to the Commissioner power to refuse a patent, where the certificate was wrongfully granted, if, notwithstanding his refusal, the claimant had a complete title.” It therefore appears that, in the above decision, this court held, in effect, the act of the Commissioner of the General Land Office in determining whether or not the certificate had been fairly obtained according to the true intent and meaning of the act, and therefore as to whether or not a patent should issue, was a judicial act, in that the commissioner was called upon to render a decision. See, also, McArthur v. Brue, 190 Ala. 563, 67 South. 249. In Price v. Dennis, 159 Ala. 625, 49 South. 248, it is held that, until the full equitable title has passed out of the United States, the property does not become the subject of state taxation. The complete equitable title in this case did not pass from the United States until the patentees were entitled to demand the patent as a matter of right. The certificate of the register and receiver was not obtained until January 31, 1913, and patent issued April 30,1913. Up to this time the title was in the United States government, and the property was neither subject to taxation by the state nor could title be acquired by adverse possession thereof. Price v. Dennis, supra; Nelson v. Weekley, 177 Ala. 130, 59 South. 157; s. c., 195 Ala. 1, 70 South. 661. The caso of Boone v. G. F. & A. Ry. Co., 78 South. 956, 1 cited by counsel for appellants, in no wise conflicts with the conclusion here reached, as what was there said had reference to that class of cases where the complete equitable title had passed out of the United States, and the issuance of the patent remained but a ministerial act. Nor do we find any conflict in the holding here and in other authorities cited in appellants’ brief. Jopling v. Chachere, 192 U. S. 94, 24 Sup. Ct. 214, 48 L. Ed. 359; Bothwell v. Bingham Co., 237 U. S. 642; 2 Maish v. Territory of Arizona, 164 U. S. 599, 17 Sup. Ct. 193, 41 L. Ed. 567; Langdeau v. Hanes, 21 Wall. 521, 22 L. Ed. 606. The latter case, as well as that of Jopling v. Chachere, supra, were commented upon and distinguished from cases of this character in Nelson v. Weekley, 177 Ala. 130, 59 South. 157. *299 We are of the opinion, therefore, that the title remained in the United States until the issuance of the patent April 30, 1913, and that, therefore, the tax title acquired by the defendants, as well as that sought to be maintained by adverse possession, cannot prevail against the title as shown by the plaintiff. It therefore results that the trial court properly gave the affirmative charge in favor of the plaintiff, and the judgment will be accordingly affirmed. Affirmed. ANDERSON, O. J., and McOLELLAN and SAYRE, JJ., concur. Footnotes [1] 201 Ala. 560. [2] 35 Sup. Ct. 702, 59 L. Ed. 1157.